Are We Family? And if so, Can I Still Sue You?

The right of parents to raise their child as they see fit has never been challenged in an Australian court. Family, as is often commented by many, is the cornerstone of our society. A good familial environment leads to the development of good citizens, who will hopefully join society and become valuable members. The methods and means which parents use in achieving this important social aim are generally left to their discretion. They have, almost, a carte blanche right to do what they believe is right for their child.[1]
In the early 20th century the Western Australian Government deprived Aboriginal parents of this right. Principally half-caste Aboriginal children were taken from their natural environments and placed in institutions and foster homes. Although the granting of this removal power (exercised under the various Aboriginal welfare statutes)[2] was well meaning in origin, it developed into a tool of biological engineering calculated to 'breed out' the Aboriginal race.[3] Aboriginal parents were deemed unfit and Aboriginal communities were seen as an inadequate and unsafe environment for raising children. In Western Australia many removed children were placed under the care of Sister Kate.[4]
The Children's Cottage Home (which later became Sister Kate's Home),[5] was one of the Homes and Missions who were responsible for raising many members of the now oft termed Stolen Generations. The stolen children have made claims against the Government for the removal policy.[6] The Children's Cottage Home however had no role in the decision to remove Aboriginal children from their families.[7] Sister Kate was responsible for how the children were raised which also entailed the amount of contact they had with natural family.[8]
It became a clear policy of Sister Kate and other administrative bodies, in some cases, to prevent any contact between the child and their natural family. This policy continued even after the Western Australian Government ceased its support.[9]
In recent submission papers by the Aboriginal Legal Service of Western Australia,[10] which are reiterated in the National Inquiry's Report,[11] many of the stolen children are now arguing that the psychological harm which has allegedly flowed from this decision is compensable at law.[12]
The unfortunate history surrounding the Stolen Generations has given rise to numerous causes of action, the most popular of which seems to be whether the treatment of the Stolen Generations could be a breach of a fiduciary duty owed by the relevant authorities.[13] I do not propose to add to the wealth of discussion on this point.[14] This paper will instead address the issue of whether The Home's treatment [15] of the Stolen Generations could be deemed negligent. It is beyond doubt that the many allegations of physical abuse would support an action in tort,[16] however it is not so clear whether the policy of depriving the children of any contact with their natural family is so readily actionable. It should be noted that both of these institutions are the same entity, except the name and administrative control for this institution changed over time. The existence of this institution is split into three time periods, the details of which will be discussed in detail in "Policies and Procedures of Sister Kate's".
This paper will argue that the Children's Cottage Home and Sister Kate's Children's Cottage Home performed the role of a parent [17] and are therefore afforded, in law, the position of standing in loco parentis.[18] It will then be argued that any legal ramifications that result should be determined by reference to the relationship of parent and child. A consequence of this relationship is that the law has shown a reluctance to second guess parental decisions and intervene in the private sphere. The significant issue which this paper will discuss is whether parents owe their child a duty of care and whether the law in Australia supports the notion of second guessing parental decisions?[19] It will be submitted that the law does not.[20] When a parent engages in parental conduct or decision making, the law provides immunity to the parent. Decisions aimed at the development of a child's beliefs and value system will not be questioned.[21]
There are certain areas of activity within the family sphere involving parental discipline, care, and control that should and must remain free from judicial intrusion. Parents should be free to determine how the physical, moral, emotional, and intellectual growth of their children can best be promoted. That is both their duty and their privilege. Indeed, every parent has a unique philosophy of the rearing of children. That philosophy is an outgrowth of the parent's own economic, cultural, ethical, and religious background, all of which affect that parent's judgment on how his or her children should be prepared for the responsibilities of adulthood.[22]

Structure of the Paper
This paper is in one sense an in depth problem question. As has been taught in law school, the student's mantra when approaching problem questions is to identify the issues, discuss the relevant law and apply the law to the given relevant facts. This paper is structured on a similar basis. The first two parts will provide the historical and factual background to the paper and will form the basis for applying the legal principles identified in the following parts.
"Social Policy and Legislative Framework" will discuss the legislative framework and the policies underlying the legislation which governed Western Australian Aboriginals from 1905 to 1972. "Policies and Procedures of Sister Kate's" will investigate the practices employed by the Homes [23] in raising children of the Stolen Generations.
"Hahn v Conley" introduces the legal analysis of the paper and is a detailed analysis of Barwick's CJ leading judgment from Hahn v Conley [1971] 126 CLR 276, which is Australia's only High Court decision on the issue of a parental duty of care. "Domestic v Parental Decisions" tracks the later development of Hahn and the interrelationship of important decisions from New Zealand and England are also discussed. I will extract from these decisions policy arguments which are implicit in the various judgments. These policy arguments will be supported by the analysis in Chapters Five which provides a review of significant American decisions.
"...the delicate nature of the task..." will explain how various courts have approached the question of whether foster homes can be regarded as standing in loco parentis. The final part will apply the identified legal principles to the Cottage Children's Home and Sister Kate's Children's Home. I will attempt to reach tentative conclusions as to how a court may and should approach the issue of whether this Home stood in a parental relationship and whether a duty of care existed. "Approaching the Questions" will provide a tentative answer to the question; 'Are we family? And if so, can I still sue you?'
Social Policy and Legislative Framework

Introduction
Western Australia's Aboriginal population has been the subject of severe legislative control. The legislation although intended to be protective was in fact highly destructive. One of the aims of this series of legislation was to destroy the natural bonds between parent and child and to create a new family. It was perceived by some that Aboriginal parents were not capable of discharging their social obligation of producing competent citizens. Parliament and particularly A.O. Neville, took it upon themselves to remove half caste children from their families and raise them in white ways.
The Perception of Parental Inadequacy
In the late 19th century Aboriginal people were perceived as vulnerable members of society requiring protection, which came in the form of special legislation.[24] In an attempt to protect Western Australia's Aboriginal population the Aboriginal Protection Act 1886 (WA) was passed. [25] This act established the Aboriginal Protection Board whose duties included the 'care, custody and education of Aboriginal children'.[26]
Despite this legislation Aboriginal parents retained their parental right to raise and educate their children as the Board did not have power to intervene in the family.[27] The first rumblings of a removal power arose with the first Chief Protector of Aborigines, Henry Prinsep. Prinsep advocated that Aboriginal people should be separated from white society and that Aboriginal children should be taken away from their families and placed into institutions where they could be raised to become useful members of society.
Prinsep's pleas for the necessary legislative power went unanswered and subsequently he instituted a programme of voluntary removal whereby he would persuade Aboriginal mothers to give up their children.[28] This policy was not very successful as 'the natural affections of the [Aboriginal] mothers... stood much in [the] way'.[29] The absence of a removal power indicated that in the eyes of the legislature Aboriginal parents if not capable (in the eyes of white society) were, at least, the appropriate people to raise their children.[30] However Prinsep's views regarding the more ideal situation represented the promise of what was to come.
The Social Problem
The 1904 Royal Commission chaired by Dr W.E. Roth discussed the administration of Aboriginal people and the 'half-caste' problem.[31] The removal power which developed from this commission was not solely intended to be a tool of social engineering. The original legislation did have a social problem to address. Most Aborigines were living and working in rural areas and due to their status within the white community their concerns were not given much credence. It was therefore not uncommon for the sexual exploitation of Aboriginal women to go unpunished. The 'half-caste children' that resulted were generally not cared for by their biological fathers and the Aboriginal mothers were normally unable to properly care for them due to their lack of resources.[32] Dr W.E. Roth observed that this was 'a most brutal and outrageous state of affairs' and recommended immediate legislation and strong supervision.[33]
The removal power therefore, in part, emerged from the perceived decadence of half-caste Aboriginal children. The problem was also due, in part, to the old adage of a child being a representation of their parent. The children were a problem because their parents were inadequate. Aboriginal parents were simply not doing their job in educating and looking after their children properly, which is evidenced by the following.
I think it is our duty not to allow these children, whose blood is half-British, to grow up as vagrants and outcasts, as their mothers are now. [34]
There is a large number of absolutely worthless black and half-castes about who grow up to lives of prostitution and idleness; they are a perfect nuisance; if they were taken away from their surroundings of temptation much good might be done with them. [35]
There is no power to do this now, consequently a half - caste who possesses few of the virtues and nearly all the vices of whites, grows up to be a mischievous and very immoral subject. This Bill will tend, in a great measure, to remedy this abuse. I may say it may appear to be a cruel thing to tear away an Aborigine child from its mother, but it is necessary in some cases to be cruel to be kind. [36]
It will be the factual foundation of this paper that the Children's Cottage Home then under the control of Sister Kate was intended to become the substitute family for the Stolen Generations. Sister Kate's [37] were intended to give them the guidance and treatment which their natural parents could not give them. Amongst Roth's recommendations was the observation that the Chief Protector should become the legal guardian of Aboriginal children up to the age of 18. The Commission and subsequently the legislature believed that the Government would not be doing its job if the children were left in their current surroundings and it became the view that it was in the child's best interests to be taken away from their family. The grief which their mothers would experience would be merely transient and they would 'forget their children in twenty four hours'.[38]
Legislative Intervention
The Aborigines Act 1905 (WA) was the legislative response to the Roth Commission. Under the Act the Chief Protector became the legal guardian of all Aboriginal children up to the age of 16 and had power to remove these children from their family.[39] It should be noted that this conflicted with the aims of the Children's Act 1907 (WA), which sought to provide for needy children without undue interference in familial relationships.[40] This inconsistency serves to strengthen the argument that Aboriginal families were perceived to be inadequate. Arguably Parliament did not see Aboriginals as being a family in a functional sense. The Aboriginal family was not producing competent citizens, and therefore there was no point in preserving this family. It was better to destroy the Aboriginal family and create a new one which would satisfy the social function of a family. Alternatively it may be argued that Parliament may have been trusting the Chief Protector to use the discretion wisely and within the spirit of the Children's Act.
The 1905 Aborigines Act gave the Chief Protector great powers. He became the legal guardian of all Aboriginal children up to the age of sixteen, the understanding being that he could remove all such children from their parents if they were found living in unsuitable conditions and place them in a mission or government institution [41]

Government Policy - Assimilation
Irrespective of Parliament's true intention behind this discretion afforded to the Chief Protector, it became a grey area. It was through this grey area that the assimilation policy could thrive and as will be shown, despite the more 'noble' origins of the removal policy, the social aim and the actual use of the power became diametrically opposed.
The removal policy originated out of the situation where a half-caste child was in a situation where they would not receive adequate care and support. Following the appointment of A.O. Neville as Chief Protector in 1915 [42] the focus of the removal power changed significantly. Neville was a strong advocate of an assimilation policy. He observed that two distinct types of Aboriginals were emerging; the full blood and half caste.[43]
Neville believed that the full blood was dying out and that the half caste was growing at a rapid rate. The half-caste was neither regarded as Aboriginal nor, in their present form, were they regarded as part of the white community. Neville resolved that the half-caste had to be absorbed into the white community if they were to function as a member of society. In contrast Neville believed that the full blooded Aboriginal should be segregated from the rest of society where they would eventually die off. The half-caste children should be removed from their families and placed into missions or institutions in an attempt to rid them of all Aboriginal traits.[44] They would then be raised in 'white ways' so they could enter general society and become useful members.[45]
Mr Neville holds the view that within one hundred years the pure black will be extinct. But the half-caste problem was increasing every year. Therefore their idea was to keep the pure blacks segregated and absorb the half-castes into the white population. Sixty years ago, he said, there were over 60,000 full blooded natives in Western Australia. Today there are only 20,000. In time there would be none. Perhaps it would take one hundred years, perhaps longer, but the race was dying. The pure-blooded Aboriginal was not a quick breeder. On the other hand the half-caste was. In Western Australia there were half-caste families of twenty and upwards. That showed the magnitude of the problem.
In order to secure this complete segregation of the children of pure blacks, and preventing them ever getting a taste of camp life, the children were left with their mothers until they were but two years old. After that they were taken from their mothers and reared in accordance with white ideas. [46]
Neville actively promoted the assimilation policy and argued for a model of biological absorption rather than segregation as he saw great advantages in 'miscegenation'.[47] Neville's plan however was not universally accepted with most opposition being to Neville's promotion of inter-racial marriages. Neville's assimilation policy was facilitated by a broad and unrestricted removal power.
The Minister may cause any native to be removed to and kept within the boundaries of a reserve, district, institution, or hospital, or to be removed from one reserve, district, institution, or hospital to another reserve, district, institution or hospital, and kept therein.[48]

Moseley Royal Commission
To institute this policy Neville required wider powers than those presently available under the 1905 Act. The Native Administration Act 1905-1936 (WA) eventually provided such empowerment.[49] The Moseley Royal Commission was held to review Neville's requests for greater powers. At this Royal Commission a submission by Mary Bennett expressed opposition to the removal policy. In her view the Western Australian Government had adopted an economically feasible policy rather than the best policy to remedy the social problem.[50]
If Aboriginal families were proving to be a problem then the Western Australian Government should render direct assistance in improving their conditions, rather than taking the children from their natural environment. It seems that the Western Australian Government was prepared to prune the branches in the hope of growing a better tree elsewhere rather than mending the tree already in existence. Despite Bennett's criticisms Moseley sympathised with the argument Neville presented and assented to the amendments.[51]
Conclusion
One can observe that the removal power was turned to serve a different purpose. Initially intended to remedy and assist Aboriginal children who could not be cared for, it became a tool of biological engineering and arguably became a weapon of genocide for which the full legal ramifications have yet to be truly realised.[52]
The comments of Neville and others reveal the perception that if the children were left in their natural environment they would not become useful members of society. The Western Australian Government took it upon itself to remedy the situation. The removal policy was essential for this purpose. The result was the creation of a new family in the foster homes. It may not have always been a loving and caring environment but then again what family always is? The homes were nonetheless, as the policy behind the legislation intended, a familial environment responsible for raising the stolen children. Their carers were entrusted with parental responsibility, and they had the difficult parental task of raising children. However to be a parent does not mean that all conduct is parental in nature. The following part will review what policies and procedures were adopted by the Home and whether, to be discussed in later parts, the Home engaged in the parenting function.
Policies and Procedures of Sister Kate's Children's Home

Introduction
The institution which became known as Sister Kate's has had a confusing existence. Sister Kate, an Anglican nun, after leaving another home called the Parkerville Children's Home, formed the institution called the Children's Cottage Home in 1933. Sister Kate operated this home until her death in 1946. From 1946 to 19 [56] the Home was operated under the authority of an administrative board. In 1948, the Home was renamed Sister Kate's Children's Home in memory of Sister Kate and in 1956 the administrators arranged for the Presbyterian Church to take control of the home.[53]
Sister Kate's Children's Home still functions today, but has undergone another administrative change and since 1988 Manguri's [54] operation has become the responsibility of a board of Aboriginal people.[55]
A failure to appreciate these discrete time periods can easily lead a person into grave error. As Whittington has observed,
The legal change of name... [from] the Children's Cottage Home to Sister Kate's Home took place in 1948 after her death as a memorial to her work. Those who loved Sister Kate feel this has allowed her name to be wrongfully defamed [and] besmirched through the actions of some of those who came after her.[56]
As the National Inquiry has revealed, most of the complaints in respect of this institution will arise out of these later periods. This is principally due to an issue of practicality as any potential plaintiff that belonged to Sister Kate's time are probably dead or otherwise there would be insufficient evidence to support an action.[57]
The most probable defendant will therefore be the Uniting Church, given the transient nature of the administrative board.[58] The decision to keep natural family away from the stolen children emanated from Sister Kate herself and became a strong policy for later controlling organisations.[59] This practice was essentially a further development of the Government's separation and assimilation policies. The close relationship between the Home and Government will have an important bearing upon how this decision is characterised.[60]
Legally the Home was under the Government's control but practically it operated as an independent organisation.[61] Therefore the responsibility for the consequences of this decision should rest with the relevant controlling body. To correctly characterise this decision it must be placed in its proper context. It is foolish and misleading to judge conduct without an understanding of the period.
The Community of the Sisters of the Church
Sister Kate belonged to a sisterhood called 'The Community of the Sisters of the Church' (CSC), or the 'Kilburn Sisterhood'. This order of Anglican nuns were formed in 1870 [62] and were specifically devoted to the education and care of children.[63] The CSC aimed to properly raise children in all facets like a natural parent.
...if the body of the child was to be made strong, its heart pure, and its mind one of unfolding beauty, then an environment must be created which would influence by every beautiful means the triune nature of the child.[64]
The Sisters of the Church were greatly influenced by Frobel [65] who believed that when caring for children we should create 'a sympathetic environment which young children could grow naturally and to their full potential.' Frobel formed the basis for Sister Kate's work. [66]
The Aims and Methods of Parkerville - Cottages
The Sisterhood soon sent some members to Western Australia to take up work there.[67] After some initial reluctance from Bishop Parry, Sister Kate eventually established a children's home.[68] The CSC purchased property in the Darling Ranges which became the venue for the Parkerville Children's Home. The aim of Parkerville was to care for a child's physical well being and to raise them into proper citizens.[69] The paramount concern of the CSC was that each child should be brought up in a loving and familial environment. The CSC endeavoured to give their children everything which other children received, such as a proper education and loving family.[70]
A very important method, introduced by Sister Kate, to achieve this familial atmosphere was the Cottage Home system.[71] Each cottage was meant to function as a little family in its own right and was staffed with a cottage mother and father.[72] An unusual feature for the time was the fact that a variety of children lived in each cottage. This, presumably, was part of the CSC's aim to imitate family life and have children of varying ages and sexes so as to mimic siblings.[73]
Leaving Parkerville
When Sister Kate reached the age of 70 Archbishop Le Fanu resolved that she should retire [74] however she was not willing to leave her position at Parkerville. It has been argued that Sister Kate's reluctance was due to her desire that Parkerville should remain under the CSC's control and not come under the Archbishop's jurisdiction.[75]
Sister Kate's refusal to accede to these requests should be regarded as an act of insubordination to a person in high authority. She once commented that she acknowledged only two authorities in this world, they being God and the children she cared for.[76] Archbishop Le Fanu [77] therefore was not part of her realm of authority.[78]
As history shows us however, Sister Kate was forcibly retired from Parkerville in 1933. Yet believing she had more to offer the children of Western Australia, Sister Kate set about finding a new vocation.[79] Sister Kate wrote to Paul Hasluck and he suggested that she become involved with Aboriginal children. The assimilation policy [80] required a place to put half caste children so that they could be properly raised. Given Sister Kate's relative expertise in raising children and her undoubted talent and resources [81] to get the job done, she seemed to be a perfect choice. Neville saw Sister Kate and the home she would operate as being a tool for assimilation. However this policy had little importance to Sister Kate. She would not be controlled and always did what she believed was best for her children irrespective of the consequences. Naturally this made the relationship between Neville and Sister Kate quite acrimonious at times.
The fact that the children were part-Aboriginal was of no relevance to her because she believed in the importance of socialisation rather than in hereditary traits. To Sister Kate the children were simply disadvantaged children.[82]

Conflict with Neville
There are numerous instances where Sister Kate openly clashed with Neville about financing, admission and the general operations of the Home. Sister Kate seemingly always adopted the view that this was a Home which she created and operated [83] so no one was going to dictate to her how they should be educated [84] and to whom the benefit of her home should be afforded.[85]
This association [with A.O. Neville] did not always run smoothly owing to bureaucratic intransigence and Sister Kate's resistance to the letter of the law when human need was required rather than the spirit of the law. Nevertheless it seems that Neville, regarding his own attitude as defensible and cooperative, lamented in the course of time what he interpreted as Sister Kate's refusal to be dictated to and to be restricted by bureaucracy...
...the real crux of their differences lay in the fact that he was adamant Sister Kate should not admit any child other than ones he sent - just as if he or the department owned the home - and demanded her obedience. Sister Kate's first concern was for any child - Aboriginal or white - in dire need of shelter and love, whereas Neville was bound by his budget. And of course she made nonsense of red tape. [86]
These conflicts demonstrate that despite the Home being under the Government's control, the policies and procedures adopted by the Home, were those that she chose to follow because they were in the child's best interests. Sister Kate would not allow her life's work to be compromised by the whims of Government.[87]
Administrator Control: 1946 to 1956
After Sister Kate's death, the Home was operated by a board of administrators.[88] There is little evidence about the policies and procedures adopted when the Home was under administrator control however Leaming's paper does cover the relevant time period. It explains that the subsequent controlling bodies followed the policy of preventing contact with natural family even though Government had relaxed its views on this issue. This departure from Government policy naturally became a source of conflict between the Home and the Native Welfare Department.[89]
Sister Kate's remained largely unaffected by these changes and the notion that children should be removed from the influence of their parents at all costs, and should be given the benefit of a decent up-bringing, remained the cornerstone of Sister Kate's Home.[90]
The administrators were apparently 'immovable' on the issue of parental contact. Arguably this shows that the decision was one of their own choosing and not one of being simply an extension of Governmental policy.
Thus Sister Kate's Home pursued its policies of social isolation and Christian training in the face of a changing society. For although the new administration brought improvement in the material well being of the children, they pursued policies originating in the 1930s when the separation of Aboriginal child and parent was sanctioned by Government and White society alike. These were policies based on the raw institutionalised racism of a White generation that saw Aborigines as a degraded, inferior and dwindling group of people to be controlled and guided... However Government policy had moved away from notions of crude absorption to one of cultural assimilation, a policy that at least in theory held notions of equality... this was a development in direct conflict with the aims of Sister Kate's Home.[91]
It is also arguable that the administrators followed the policy as simply being part of the well accepted blue print of procedures that Sister Kate had developed while the Home was under her control. The logic may have been that if the 'wheel isn't broken why fix it?' Sister Kate had created a system of child-raising which had been successful in producing capable and well adjusted children. Obviously the way she did things was the correct way to raise children. The possible legal consequences of this approach in arguably avoiding their parental responsibilities will be discussed in "Approaching the Questions".
Presbyterian Church Control: 1956 to 1988
The Presbyterian Church took control of Sister Kate's in 1956 although negotiations to arrange the transfer had been taking place since as early as 1951.[92] Although many of Leaming's comments about the operation of Sister Kate's are applicable to the period in which the Presbyterian Church was responsible, her comments cannot be consistently applied throughout the period of Presbyterian Church control.[93] This has led to a patchwork type historical analysis of the relevant period.
A Change of Policy and therefore Procedure?
The Uniting Church's submission [94] to the National Inquiry explained that there was little research material about Sister Kate's for this period.[95] The submission provides some evidence of the policies and procedures adopted by the Presbyterian Church with respect to Sister Kate's for the time period not covered by Leaming's paper. The evidence in the submission and the views of Leaming are inconsistent. The inconsistency is however reconcilable. Leaming's paper only covers up to 1964 which coincides with the formal end of the Government's separation policy represented by the Native Welfare Act 1963 (WA). This legislation repealed all previous legislation and abolished the Chief Protector's removal powers. Naturally Government's unwillingness to continue its official support for the removal policy would have some impact upon wider society and the operations of Sister Kate's.[96]
With the end of the removal policy, any perception that Aboriginal families were inadequate was weakened. Naturally this made it difficult for Sister Kate's to justify the continued application of their policy of no contact with natural family. The change in policy by Government seemed to promote the view that natural family must have some role to play in raising their children. Any necessary removals should take place under the criteria of the Child Welfare Act 1947 (WA) which normally justified the disruption of the family unit. As was stated in the submission;
...child care is a complicated, difficult profession and the policies associated with it are forever undergoing subtle changes as society changes... [97]
This change in perception necessarily meant that Sister Kate's would have to change any policy which, 'carte blanche', refused a child any contact with their natural family. As early as 1963 the National Missionary Council displayed quite 'enlightened' views regarding the role of Aboriginal culture in Australian society.[98]
These views flowed through to the policies adopted by Sister Kate's. The earliest evidence of Sister Kate's policies regarding their role with the children is given on the 18th June 1969. Effectively Sister Kate's saw themselves as an environment where they offered a substitute family, 'where affection and understanding, guidance and leadership will be available'. A child's needs would be assessed and judgments made on an individual basis.
...he or she should be given help suited to, and planned around, those needs and never compressed into the shape of inappropriate care simply because it is easily available.[99]
This policy arguably evidences that the Presbyterian Church took their its responsibilities quite seriously. The emphasis on assessing a child's needs implies that there were no longer any strict global policies regarding how a child should be raised. If a decision was made regarding the degree of contact a child should have with their natural family, it was on an individual basis. Effectively the Presbyterian Church determined what was best for the child and formed policies and procedures on that basis. The admission that decisions were made on an individual basis shows that the Presbyterian Church engaged in a delicate consideration of what was in a child's best interests. This delicate consideration shows conduct and decision-making which this paper argues should be given leniency when injury results from that function, on the grounds that is it parental in nature and purpose.[100]
Later on the 16th July 1974 the Church acknowledged that they were 'committed to a policy of preventative treatment'. If the Child Welfare Department saw it necessary to remove a child from their family then the Church should endeavour to minimise the time that the child and natural family were apart.[101] The Church developed a clear policy against long term institutional care, and separation from natural family. Yet where the circumstances demanded it these measures could be imposed. But such decisions were to be made on an individual basis and no general rules were to be blindly applied. This approach was confirmed in a document written by Leslie E. Smith entitled 'Blueprint for Methodist Homes for Children'. It stated;
...it is best for a child to be reared in his natural family , so long as it can meet his needs or be helped to do so... A child should be separated from his own parents only when circumstances, problems of parents, or problems of the child are such that, even with help, he cannot receive the care and treatment he needs while living in his own home or community... If a child must be cared for away from his natural family, the particular needs and problems of the child and his family, which may change from time to time, should be the basis for deciding what kind of care is most suitable... The ultimate goal of institutional care is for every child to return to family life in the community...[102]
Again the Presbyterian Church is demonstrating that it will determine the merits of any action in respect of a child, by considering their individual needs, much like a parent. Presumably any stance on a child's contact with their natural family would have been determined by what was most suitable to their situation.[103]
Conclusion
Now is not the time to conclusively determine the legal consequences of the respective policies or attempt to do so.[104] This part has focussed upon outlining the policies regarding the degree of contact with natural family. The following parts will now discuss how the law may treat the application of these policies. It will be argued that the controlling bodies stood in loco parentis [105] to the children and thus the legal consequences of these policies is an issue that must be determined by reference to this relationship. The following discussion will reveal that the proper and fundamental manner in which to determine whether a parent should be offered any leniency is whether they have engaged in conduct which is parental in nature and purpose.
Hahn v Conley

Introduction
Australian law, which is headed by Hahn v Conley, is universally opposed to the existence of a parental duty of care which springs from the relationship of parent and child. As has been noted,[106] it is surprising that a relationship that satisfies the elements of foreseeability and proximity, should not give rise to a duty. It appears that the policy issues have been decisive.[107] This does not mean that a parent enjoys complete immunity from civil action in Australia. What must be shown is that the circumstances of time and place justify the imposition of a duty of care. The duty turns upon the circumstances and whether they justify an otherwise 'unacceptable intrusion into... family and domestic relationships.'[108]
The principal submission of this paper is that the authorities are properly understood as showing that the law is incapable of reviewing parental decisions.[109] Although the authorities will have numerous policy arguments supporting them,[110] the better view, and the view taken throughout this paper, is that the law looks to the function that is performed by an individual, rather than the existence of any blood connection to the child.[111] Leniency is offered to those persons who engage in the delicate task of parenting thus making arguments about the preservation of familial harmony and the existence of an economic unit, secondary to this principal objective The mere fact that a parent makes a decision does not necessarily make that decision a parental decision. A parent must demonstrate that they have used skill and knowledge which is beyond the court's understanding and appropriate comprehension. A decision of this quality will show that they have engaged in the delicate task of parenting.
There is little Australian case law discussing whether a parent owes a child a duty of care. Most cases have dealt with a third party wishing to claim contribution from the parent for negligent supervision. It was therefore necessary to seek assistance from other jurisdictions to see how they approached the issue of a parental duty of care.[112]
A significant problem with Australian courts is that they fail to express the policy grounds they are relying upon when reaching their conclusion. Much therefore is left to implication and deduction. Authorities from other jurisdictions are valuable in clarifying what I believe to be implicit within most Australian authorities. This paper is not intended to be a comparative study. These authorities are used simply to clarify otherwise vague tests and reconcile apparently inconsistent decisions.
Overview of Policy Reasons: The 'Circumstantial Matrix'
Australian law is a complex web of judicial views, as Wright stated:
...it is true to say that when confronted by a question which raises difficult issues of policy, the judiciary will have recourse to different concepts through which they will seek to explain and justify a decision. The various arguments may seek to justify a decision without actually explaining it and different judges will utilise different concepts... [113]
The main policy grounds for not finding a parental duty of care have been:
- As the family is an economic unit, if a child is permitted to sue their parents it simply circulates funds within the unit. It either reduces the compensation otherwise available to the child, or it prejudices other children within the family.[114]
- The courts should not second guess parental decisions. The courts should not undermine parental authority and discretion.
- There is no objective standard against which to gauge parental conduct.[115]
- By not intervening in the familial field the courts preserve family harmony.[116]
These policy arguments are not common to all jurisdictions, yet they will impact upon a court's decision. As will be shown with Barwick's CJ test of circumstance,[117] it is arguable that these policies form a 'matrix' of circumstances which a court may consider when reaching their conclusion. Which flavour of reasoning adopted or the flavours held to be determinative (of the various policy arguments available under the Circumstantial Matrix), will have contrasting results. Despite the significance of such arguments, this paper will submit that the delicate nature of parenting is the universal policy ground upon which most of the authorities hold to be determinative. This therefore requires some definition of what this paper considers to be the parenting function.
Scope of the Parenting Function
The role of a parent is continuous and without limits. Once a child is born there is not a moment in the day in which you are not that child's parent. There is no sick leave, nor is there long service leave. The responsibility which is thrust upon and which a person assumes is immense. There is no right answer or set of rules to follow in raising a child. It is a task which is done by 'touch and feel'. You cannot be educated in the requirements of being at the beck and call of a child twenty four hours a day. This is why the law of negligence is reticent to intervene in the parental field. How can you criticise a person's methods when the only real education is through experience and experience necessarily means that mistakes will be made? Especially when we are told that the best learning is done through recognising one's mistakes. However parental responsibility is not a magic spell which can be spun around the law to avoid its consequences. The difficulty therefore is identifying what is parenting? What field of activity will the law second guess, and which field will it leave alone? Arguably the parental 'holy ground' could be anything that is connected with raising a child into adulthood. But if the field was defined as such it would be casting the net too wide. Because leniency is offered due to the difficult nature of parenting, those tasks or decisions which are not difficult should not be given leniency.
Parenting calls into play numerous tasks ranging from bathing a child to determining the degree of religious instruction they receive. Some decisions or conduct call into consideration views of the parent which are formed by personal belief, while others which are mechanical in nature and are shaped more by society's views as to what is appropriate. This latter types of decision lack the subjective, personal qualities of how a parent wants their child's beliefs and value structure to develop. These are everyday ordinary domestic decisions. Only those decisions or conduct which demonstrate a knowledge or belief system which are beyond the law's possible and appropriate comprehension are true parental decisions.[118] As will be shown, conduct or decisions which are parental in nature and purpose embody this principle.
Clearly there are things which the law knows. It knows abuse and intentional wrongs and there is authority which will hold a parent liable for such conduct.[119] Such conduct stands outside the parental sphere as it is not parental. It is not parental to intentionally abuse (physically or mentally) a child. Striking a child for the purposes of discipline is one thing, yet it is quite another to suggest that parenting extends to beating a child to a point where they suffer severe injuries.[120] Conduct and decisions of this nature are not parental as they serve no parental function. Children do not benefit from such abuse as it does not assist in bringing them to adulthood and forming their own beliefs and value systems. This is what parenting is about and what the law of negligence is aimed at preserving. As will be shown, negligent parenting does not provide a child with a cause of action, but negligence by a parent is completely different.
This brings out an important distinction to the factual question which this paper is to investigate. The deprivation of familial contact by the Home was, in hindsight, an incorrect decision. However res ipsa loquitor is not the universal rule in law. The fact that someone has been injured does not always mean that someone is legally responsible. If the Home's decision regarding familial contact could be characterised as abusive, then it is clearly not parental and arguably negligent. Yet if it is parental, it is, as this paper argues, not negligent.[121]
A Qualified Holy Ground?
The familial environment however is not a complete holy ground. An apparent inconsistency exists with authorities such as Smith v Leurs [122] and Home Office v Dorset Yaught Co.[123] These cases have held that a parent can be vicariously liable for the wrongs of their child. This paper contends that a child cannot sue for parental mistakes committed by a parent. It appears hypocritical to contend that liability can flow one way, yet not the other. The inconsistency, as I described, is only apparent. The first issue is that there is a clear distinction between a wrong and a mistake. The law accepts that mistakes will be made. As Andrews stated '[The law seems]... to be saying that no parent is perfect and allowance must be made for the fact that mistakes will be made in... home life.'[124] Similarly Abadee J stated;
[The law does not]... accept that when misfortune occurs someone is necessarily to blame, or that there is a legal responsibility in someone to pay compensation or damages.[125]
Alternatively every aspect of the parent/child relationship would be under scrutiny. Every bump scratch and or tear could produce a legal action. The law does not expect parents to be perfect and that is why this leniency is offered. Injuries and emotional difficulties which occur within this relationship are treated differently from those which extend beyond the relationship. Thus parents must be careful to ensure that their child does not injure another party and failure to do so may render parents liable in negligence.
Young [children]... despite their mischievous tendencies, cannot be classed as wild animals...in control of their children, parents must not omit to do that which a reasonable man... would do...[126]
This distinction has recently been explained in Kerr v Allen.[127] Being faced with an instance of vicarious liability for a child's torts AJ Donovan was presented with the authorities I am about to discuss, with their arguments on leniency, and he stated:
I consider that the 'parent cases', where it is the child who is suing or a third party seeking to join the parents, involve policy grounds for not finding a duty of care. This in my view is the true distinction.[128]
It may be true to say that a parent may commit mistakes that injure a child yet not be negligent, however if their mistake leads to a third party being injured, then they may be liable to the third party. By doing so we are not second-guessing parental decisions or compromising a parent's right to raise their child as they see fit. We are only expecting parents to be responsible for their child and to ensure that their child does not cause undue harm to others. It is now necessary to explain the law behind these views.
Hahn v Conley
Hahn v Conley [129] involved a young girl who was in the care of her grandparents. After the evening meal the child went outside looking for her grandfather and became distressed when she could not find him. Her grandfather heard her cries and from across the street called out to her 'I am over here' and returned to the conversation with his neighbour. The child proceeded to cross the street unattended and was hit by the defendant's car.[130] In an action for contribution, the defendant alleged that the grandfather's negligent supervision had contributed to the plaintiff's injuries. At trial it was held that the grandfather owed a duty of care by reason of the parental relationship and that he had breached that duty.
The Relationship Argument
On appeal to the High Court, the majority, headed by Barwick CJ stated that the relationship did not create the duty:
...in particular situations and because of the nature or elements, there will be a duty on the person into whose care the child has been placed and accepted to take reasonable care to protect the child against foreseeable danger, there is no general duty of care in that respect imposed by the law upon a parent simply because of the blood relationship... parents like strangers may become liable to the child if the child is led into danger by their actions. [131]

Barwick CJ adopted McCarthy's J approach from McCallion v Dodd.[132]
The occasions when a child can sue his parent in tort are the result of specific situations in which the parties find themselves... the relationship is not the foundation of the right of action
Barwick's CJ reluctance to impose a duty by reason of the relationship arguably signifies support for the more global policy that certain private sphere issues, namely parental decisions, are outside the law's consideration. The parent/child relationship clearly satisfies the requirements of foreseeability and proximity, however policy reasons have negated the otherwise valid operation of legal principle. As Simon Brown LJ has commented,
The ultimate issue is whether it is just and reasonable to impose a common-law duty of care in the circumstances...foreseeability of damage and proximity of relationship [are]... not in doubt.[133]
The 'Circumstantial Matrix' provides colour to the policy rationales for not imposing a duty of care. This paper argues that the law will not second-guess parental decisions. Barwick CJ supports this view by stating that 'the moral duties of conscientious parenthood do not as such provide the child with any cause of action when they are not, or badly, performed or neglected.' [134] Arguably 'moral duties' are purely parental duties [135] and conduct within this field will not be questioned.
Barwick CJ was equally clear that being a parent is not a 'get out of jail free card'.
...if there be a cause of action available to the child, the blood relationship of the defendant to the child will not constitute a bar to the maintenance by the child of the appropriate proceeding to enforce the cause of action. [136]
In stark contrast America developed the parental tort immunity doctrine to protect parenting discretion and preserve family harmony.[137] Australia has not followed a similar path despite earlier judicial comments to the contrary.[138] Australian law attempts to strike a balance between what is fair to the parent and what is fair to the child. Being a parent will not absolve you neither will it condemn you. A parent will only be legally responsible when the circumstances demand it.
'...like a stranger...'
The circumstances that create the duty however are not clear. Barwick CJ attempts to shed some light on this issue by likening the position of a parent to that of a stranger. When a child is led into danger by the parent's conduct then like a stranger the parent will be expected to act reasonably. They have stepped outside the realm of the private sphere and into the public sphere where they will be required to abide by what the community deems to be reasonable behaviour.
This signifies a circumstance in which the law has expertise and not a parental field where the law has no experience. The law is premised on the ideal that parents should have discretion in determining how their children are raised. Australian law, through Barwick's CJ test of 'appropriate circumstances', tries to draw a line between conduct that is parental and that which the law is capable of reviewing.
Applying the Test of Circumstance
The issue for Barwick CJ was whether the current circumstances created a duty of care. He believed a duty did not arise even though the lower courts had interpreted the grandfather's statement as an assumption of responsibility.[139] It was argued that the appellant's conduct actually encouraged the child to come across the road and thus by leading the child into danger he assumed a duty to take care. Barwick CJ differed in this interpretation of the facts and held that the appellant's response was not intended to be a request to come to him nor would a reasonable person believe that the grandfather intended so.[140] The response was merely one of reassurance and as such did not create a duty.[141]
Supervision being Parental in Nature and Purpose
Such an analysis seems 'novel' but the analysis may be indicative of a deeper issue. American law and later Australian authorities have held that the level of supervision a child receives is an act of parental discretion.[142] To review 'supervisory decisions' would place 'a fetter upon parental judgment and discretion'[143] which it is hesitant to do. This different factual analysis arguably reveals a view that 'supervisory decisions' are prima facie parental in nature and purpose and therefore stand outside the law's consideration.
Conclusion
Hahn v Conley left Australian jurisprudence with a test for a parental duty of care, even though a quite vague one. The court was to look at the circumstances and whether it was appropriate to impose a duty of care. If the child was led into danger then the parent was deemed to have assumed responsibility for the child. Later cases have concentrated upon this analogy between a stranger and a parent and whether the parent's actions have placed the child in danger
Domestic v Parental Decisions

Introduction
The later applications and interpretations of the test of circumstance have at times been inaccurate. Many authorities, erroneously, seek to narrow this broad test to simply being a question of whether the child was led into danger. These same authorities however introduce terms such as 'ordinary domestic decision' and 'common-place domestic situation', which indicate a line of thought on the judiciary's part. These terms encompass a sphere of activity which is wider than the notion of parenting defined in this paper. Australian law is unclear as to which sphere the leniency attaches itself. Some authorities suggest that leniency is offered to a discrete area of conduct or decision making, appropriately described as being parental. Others, however, are suggestive of a wider sphere which implies that all domestic conduct and decision making is immune.
Posthuma v Campbell
As with Hahn, Posthuma v Campbell [144] dealt with the ability of the court to review a supervisory decision. The plaintiff's face was severely injured when his grandparents' dog attacked him. The plaintiff sued his grandparents for damages under the Dog Control Act 1979 (SA). The grandparents sought to join the plaintiff's mother as a third party arguing that the mother's supervision of the plaintiff, while there was a dog in the vicinity, led the child into danger.[145]
Applying the Test
As with Barwick CJ, Jacobs J adopted an interesting factual analysis very favourable to the plaintiff's mother.
It may well be foreseeable, as a possibility, that a dog, any dog, may react adversely to the presence of a young child; but to place a parent under a general duty, as parent, to guard the child from that risk would, in my judgment, be an unwarranted intrusion of the law into family and domestic relationships...In the common place domestic situation... she could scarcely be expected to tie the child to her apron strings and keep him out of sight and reach of the dog at all times. [146]
Two points may be noted from Jacobs' J statement. If it is quite well known that a dog, any dog, may react adversely to the presence of a child, then why was this situation not regarded as one creating a duty? Surely the child was in danger if there was a dog in the vicinity.
Domestic Situation - Parental Nature of Supervision
Secondly if this was the case why was a duty not found? Reliance can be placed upon the words 'in the common place domestic situation'. Jacobs J introduces a term which is of some significance. What is a domestic situation, and why should the law treat these situations differently?[147]
This observation is related to a point discussed above. The degree of supervision offered by a parent is an exercise of parental discretion, which prima facie the law will not question. As has been stated in an American court,
Supervision is uniquely a matter for the exercise of judgement. For this reason parents have always had the right to determine how much independence, supervision and control a child should have....[148]

Supervision is a parental decision involving the exercise of judgment in response to variables which the court cannot understand.[149]
It would impose a fetter on parental judgment and discretion...Some parents might choose to be highly protective, others might accept that their children will get hurt, or hurt themselves, as a necessary part of the child's development. [150]

Holding
Posthuma suggests that the law cannot fully regulate the parental relationship and necessarily some aspects of the relationship stand outside of legal consideration. On a global view it seems to state that supervision is inherently a parental decision, however this is simply a general rule. If there are other circumstances, such as strong physical danger, which override this prima facie concern then the fact that this is an act of supervision will be null and void. Although the supervision offered may have familial purposes, its nature is changed by the close and strong physical danger. The conduct moves from a purely parental field into an area which the law is able to determine what is reasonable conduct. Also Jacobs J introduction of the term domestic situation or decision is interesting which Robertson v Swincer further develops.
Robertson v Swincer
In Robertson v Swincer [151] the plaintiff was injured when he walked onto the road unsupervised and was hit by the defendant's car. The defendant argued that he was entitled to contribution from the plaintiff's parents on account of their negligent supervision.
Does a Duty only arise from Positive Action?
King CJ applied what he believed to be the legal test emanating from the above authorities. Parents would only be liable if they had done something to lead the child into danger. As the parents had done nothing to endanger the child a duty should not be imposed.
...a duty of care to protect a child from harm may arise... [when the person] has acted in relation to the child in such a way as to create a foreseeable risk of harm apart from that action would not have existed...
...The respondents did not take the plaintiff onto the road or do anything which might entice him into a situation of danger. They were engaged in the ordinary social activity of visiting friends with their family and of farewelling those friends at the conclusion of the visit.
Their fault... was an omission occurring in the ordinary course of discharging their responsibility for the care and supervision of the child...[152]
King CJ proposes that a parent will only have a duty imposed upon them when they have done some positive act to endanger the child. Two points arise:
- A duty cannot arise from misfeasance,
- A duty can only arise when the child is placed in danger.
With respect this is incorrect. Despite his assertions of following Hahn and apparently applying Barwick's CJ test of circumstance, King's CJ test is quite different. Barwick CJ stated that in particular situations and because of their nature or elements, there will be a duty. [153]
The duty arises because of the 'nature or elements' in the surrounding circumstances. Positive action in leading the child into danger is simply one example of a circumstance whose nature or elements warrant imposing a duty of care. Barwick's CJ test contemplates that a duty can arise from a parent's omission. Similar views were expressed by Nader J in Anderson v Smith. He observed that Barwick's CJ analogy with strangers had created an interpretative flavour that the parent must do something to endanger the child. Nader J disapproved of this view as being an 'over narrow reading of the cases as I understand them'.[154]
...it is reading too much into his reasons to draw from the expression 'led into danger' that a person standing in loco parentis to a child can only be liable in negligence to the child if he actively leads the child into danger. In appropriate circumstances, a person who happens to stand to a child in loco parentis can surely be liable to that child for injury caused by omission. [155]

Understanding the Analogy
Barwick CJ implicitly believed that only in the most exceptional circumstances could the law intervene in what is essentially a moral obligation. Barwick CJ likened these exceptional circumstances to the situation where the law compels people to rescue others, generally a situation also governed by moral obligation. The law respects a person's liberty and their right not to act unless the person has created the risk of harm.[156] Similarly the law respects the parents' right to raise their child as they see fit, yet this respect or immunity is dissolved in certain circumstances such as when a child is endangered. The parental right is lost because these are circumstances where there is overt danger, and the courts are able to determine what is appropriate behaviour.
Policy Grounds for Robertson
This problem with Robertson does not mean that it is of no authoritative use. When on application for special leave to appeal to the High Court Mason CJ stated that there was not sufficient doubt over the decision's correctness [157] to warrant a grant of special leave.[158] This suggests that the policy grounds expressed by the court in coming to their conclusion may, on their own, support the court's decision.[159]
Supervision: Solely a Parental Responsibility?
As with Jacobs J, King's CJ comment that the conduct was an omission that occurred in the 'ordinary course of discharging their responsibilities' assumes significance. Like Barwick CJ this suggests the existence of a boundary or inner core of decision-making/conduct which a court will not question. King's CJ opposition implies that the law is being asked to go further than it properly should. It is now being asked to review a decision made in the ordinary course of parenting.
...most parents...would regard themselves as under a moral obligation to take care to protect their child from harm. The question... is whether the law in such circumstances imposes a duty...[160]
The words 'in such circumstances' arguably means those circumstances which are normally motivated by moral obligation. This arguably is the realm of the parental decision. Should the law intervene in this field and furthermore is this a field in which the law is capable of intervening? King CJ answered these questions:
The moral duty which rests upon parents and those acting in their place continues during every moment from the time during which the child is in their care. If that is to be converted into a legal duty it must be recognised that departure at some time from the standard of reasonable care... is almost inevitable. There are moreover no readily recognisable standards for parental supervision as there are for specific activities such as driving a motor car. Parents differ as widely as human beings themselves in temperament and personality. Some are less alert and prudent than others and they may differ widely in their parenting capacities and views as to what is required.[161]
The biggest hurdle for a court is that 'parents differ as widely as human beings themselves.' What one parent may consider essential to a child's development, another may not consider at all. Does this mean that the omission is negligent? The authorities clearly state the negative. Parents engaging in the delicate task of parenting will not be second-guessed. This is principally because the courts are not able to determine the reasonableness of parental conduct as 'there are... no readily recognisable standards for parental supervision as there are for specific activities as driving a motor car.'
Similar opinions have been expressed in other jurisdictions;
The studied calm of the Royal Courts of Justice... is light years away from the circumstances prevailing in the average home... We should be slow to characterise as negligent the care which ordinary loving and careful mothers are able to give to individual children, given the rough-and-tumble of home life [162]
...the law's external coercive incentives are inappropriate to assuring performance of the subtle and shifting obligations of family.[163]

No recognised Standard of Care
Because there is no readily recognisable standard of care parental conduct is immune from the court's scrutiny.[164] As Jacobs J commented he saw the problem as being that the courts would be searching for an 'imaginary norm'.[165] The problem is expressed more clearly in American decisions.
Considering the different economic, educational, cultural, ethnic and religious backgrounds which must prevail, there are so many combinations and permutations of parent - child relationships that may result that the search for a standard would necessarily be in vain - and properly so.[166]
Our geography, our population, and most importantly the diversity in our religious ethnic and cultural backgrounds make a common standard inapplicable...To suggest that a... jury should judge the parent on the basis of some common standard is... nothing short of impossible.[167]
Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor provides a good discussion of the ability of policy to negate the otherwise valid operation of legal principle.
In Australia, policy reasons have been held to deny the existence of a duty of care at common law even where proximity and foreseeability are both present... 'reasonable foreseeability on its own indicates no more than that such a duty will exist if and to the extent that, it is not precluded or modified by some applicable overriding requirement or limitation'. The policy of the law may impose a limitation in particular circumstances or in classes of case to limit or confine the existence of a duty to take care. In the end ... policy considerations will set the outer limits of the tort... In Gala v Preston... it was held that no duty was owed, apparently, at least on the part of some members of the High Court, for public policy reasons.167(a)
Some Justices in Gala v Preston [168] accepted that the inability and inappropriateness in attempting to form a standard to determine the reasonableness of a defendant's conduct is a sound policy reason for not finding a duty of care.[169] This policy argument is applicable to the current context. The courts are not skilled in reviewing parental decisions as they are not parents of those particular children and this is not a problem that can be solved by expert evidence. As was stated 'Parents differ as widely as human beings themselves in temperament and personality'.169(a) Thus each parent/child relationship is different and the only expert on that specific child is the parent themself. When they act within their parenting field, or field of expertise, their conduct cannot be questioned. It is only when the parent steps outside the boundaries of their parenting field can the law review the parent's conduct.
Inappropriate for Judicial Review: Freedom of and from Religion
The reluctance of the courts to intervene in this area is indicative of a deeper social issue. If it is accepted that the law represents the dominant paradigm and that the concept of reasonableness, being a matrix of beliefs and values (which include religious ones), will be imposed upon others. The dominant religious views will flow through the requirement of reasonableness and may create a situation of the State, or at least judicial law, imposing a set of religious values upon the wider community.
Religious freedom is a fundamental part of our society and this situation cannot be allowed to eventuate or even be possible. One of the many ways religious freedom is achieved is by allowing parents to raise their children in the manner they see fit.[170] Therefore a wider social purpose of religious freedom is also served by this familial immunity. It should be noted, however that this has not stopped many American courts from removing their parental immunity doctrine and using a reasonable parent standard.[171]
The Inability to Review Parental Decisions
A principle that may be drawn from Robertson and other cases is that decisions of an ordinary domestic nature will not be reviewed by the courts as these are areas in which the law should not intervene.[172] This begs the question of what do the courts mean by an ordinary domestic decision? Are they decisions connected to family life or is it narrower and looks to conduct that is properly termed a parental decision as they are connected to raising children? The factual circumstances of both Posthuma and Robertson suggest that the term may be synonymous with parental decisions as supervision is generally parental in nature and purpose.
This is merely 'prima facie' as the qualities of being parental in nature and purpose are not a product of automatic presumption as the facts must lend themselves to such an interpretation. For example if the child is put in danger or the parent's actions move beyond their child rearing qualities, the law will intervene.
This analysis that ordinary domestic decisions are parental decisions is disturbed by Towart v Adler. This case suggests that there are two spheres of activity which the law may be considering.
The Protected Conduct Broadens
In Towart the domestic decision of opening a window which led to a child suffering injuries was considered. The Towart family were on holiday and staying at a holiday house. The children stayed in a room with a bunk bed. Due to the risk of her falling the plaintiff had been told she could not go on the top bunk. After going to the beach Mr Towart opened the window in the children's room to allow the sea breeze to come through. The plaintiff climbed onto the top bunk and fell through the window sustaining injuries. The owners sought to join Mr Towart as a third party. Recovery from him turned upon the issue of whether he had been negligent in opening the window to allow the sea breeze through. Reliance was placed upon the fact that Mr Towart's action of opening the window had led the plaintiff into danger and therefore a duty existed.
King's CJ response to this argument was two fold. As Mr Towart was a stranger to the premises he did not appreciate the risk such conduct presented. This seems a tenuous argument as any parent should be aware that a bed on the same level of an open window is an accident waiting to happen. The more convincing reason given was that the opening of the window was an ordinary domestic decision. In King's CJ view it was a practical necessity to ensure proper ventilation on a hot night.
This was not the case of exposing a child to the dangers of the highway. The opening of the window was an ordinary domestic incident. I think that to treat so common an incident as the occasion for a legal duty of care in supervision would 'be an unwarranted intrusion of the law into family and domestic relationships'. [173]

Something Different?
This holding disturbs the consistency between the terms parental decision and ordinary domestic decision. Given the above authorities' exploration of the term domestic, the nature of the conduct presented in Towart is significantly different. Upon these facts the term domestic embraces a wider sphere of conduct. The decision to leave a window open does not possess any child developing qualities and is not parental. Apparently an ordinary domestic decision embraces both the mechanical decisions associated with family life and the more intimate decisions of a child's personal development.
The law should not offer a parent complete immunity on grounds that the decision was an ordinary domestic decision as mechanical decisions do not possess any parental qualities and do not come within the policy rationale for leniency. The boundaries which the law should draw are evident in Bye v Bates and Anderson v Smith.
The Boundaries Narrowed
Two families owned neighbouring farming properties and like most neighbourhoods the children from the respective families would play with each other. An arrangement existed that the children would always be properly supervised. While under the care of one parent, one of the neighbour's children played with an electrical device called a vaporiser. The vaporiser had an exposed live wire and the plaintiff was severely burnt. The parent responsible for supervising the pair had told them to return home but failed to make sure that the plaintiff and his brother had left the premises as he was preoccupied with doing the shopping.
Supervision: The Parental Presumption Rebutted
O'Loughlin J held that the defendant owed a duty of care in the circumstances and that he had breached that duty.[174] Given the circumstances that there were electrical appliances and the fact that these were young inquisitive children, he should have known that this was a recipe for disaster. The defendant should have ensured that the plaintiff and his brother had actually left the premises before leaving himself.
...his failure to see that the children had actually set off for the Bye's house is not to be taken in isolation; for it must be considered in conjunction with the presence of the electrical appliances on the verandah, his knowledge of their presence and the obligation on his part to recognise that the children would have, or might have, seen the appliances.[175]
This seems anomalous considering that this was a case of inadequate supervision. Furthermore it is difficult to reconcile O'Loughlin's J judgement given his support of providing leniency to parents.
It is important... to avoid being overly protective of children; and of course it is quite wrong to work backwards, assuming tortious conduct because a child has been injured...[176]
It is submitted that the defendant's decision regarding the plaintiff's supervision, although parental in nature, was not parental in purpose. It was not a conscious decision about entrusting a child with the use of a dangerous instrument. The parent's decision was one of convenience and carelessness, and not about the plaintiff's development. It was not difficult to actually ensure that the children had left the premises.
Domestic Conduct should not be Immune
The quality of a task being simple was a factor in Bedlam's LJ dissent in Surtees v Kingston-Upon-Thames Borough Council; Surtees v Hughes and another.[177] The plaintiff was in a foster care arrangement and sued the defendants, and the relevant local authority, in negligence. The plaintiff had been left in a bath by herself while her foster-mother attended other matters. Somehow the hot water tap was turned on and the plaintiff suffered severe injuries. It was argued that the foster mother was negligent in leaving the plaintiff alone, as children and water are circumstances of obvious risk. Bedlam LJ applied a rationale similar to the underlying policy I have discussed.
...though Mrs H was going about normal household duties... The accident... arose... from a momentary failure to give thought to an obvious risk when the step needed to obviate it was simple. I can see no warrant for saying that to impose a duty of care in such circumstances would impose an impossibly high standard, any more than it would in the case of a child left where it could gain access to saucepans on a stove or to a kettle. [178]
Bedlam LJ suggests that showing the decision is 'an ordinary domestic decision', as in Towart, does not determine the issue. This exemplifies a distinction between the concepts of domestic and parental decisions. The former encapsulates decisions related to family life which are also mechanical or simple in nature. These are decisions which any person can comprehend and are not parental in nature and purpose. A similar point was alluded to by Andrews where she commented that the law in this area is focussed upon protecting the child and the right of a parent to raise their child as they see fit.[179] This necessarily means that a balance has to be struck. Some injuries will be actionable and others will not. If one accepts that the principal policy argument is to protect a parent's child raising prerogatives, then when the conduct does not contain any element of this policy they should be held liable.
...a parent's conduct in leaving a young child alone with a dangerous instrumentality can be distinguished from a parent's choices regarding the amount of supervision which will best develop a child's individuality and self reliance. [180]

Conduct must be Parental in Nature and Purpose
Bedlam's LJ holding suggests that not all decisions about a child's supervision will be immune. Implicitly this means that the supervision must have some 'self forming qualities'. Although the conduct is parental in nature, it must be parental in purpose. Some supervisory decisions are merely mechanical decision whereas others are not. In both Surtees and Bates, one can observe that the parent's conduct was not truly parental. The parent was careless and this carelessness produced harm for which they are liable. If the parent's conduct demonstrated that this was related to properly raising their child, then leniency may have been given. Conversely Robertson and Posthuma dealt with cases of parental supervision and these decisions must be seen as being parental in nature and purpose.[181]
Alternatively it could be argued that these decisions support the true domestic decision principle, and that conduct need only be domestic rather than parental. I prefer the implicit views of O'Loughlin J and Bedlam LJ which are consistent with the policy argument that leniency is awarded for parenting rather than for the familial environment generally.[182]
It should be noted that the above decisions can be justified by relying upon other limbs of the 'Circumstantial Matrix'. A factor which can be used to reconcile these cases is the preservation of family harmony. In both Robertson and Posthuma the child was part of a loving family. By definition their injuries were to be compensated and cared for in any event. However in Surtees the situation was different. The child was arguably not part of a loving family as the foster parents were considering giving up the child.[183] The existence of a loving family argues against the law's intervention.
...actions by children against their parents... [are unlikely to] further either of these aims [deterrence against careless behaviour and fair distribution of the loss]...most parents are motivated to care for their offspring by natural feelings of love and affections and by social conditioning. It is difficult to see how any deterrent function could have more than a minimal effect in this context. Indeed the spectre of legal action, may have a detrimental effect on the quality of parenting and lead to unnecessary mollycoddling of children.[184]
This is simply one factor and case law on this topic is riddled with inconsistencies. A case can turn upon any factor or element of the 'Circumstantial Matrix' which the court considers important. The majority in Surtees followed an approach analogous to the one shown in Towart. As it was an ordinary domestic incident, and even though not parental, the court could not review the issue.[185] Stocker LJ considered important the fact that this was an incident which occurred in the course of daily domestic routine.[186] Similarly Sir Nicolas Browne-Wilkinson VC stated:
The responsibilities of a parent... looking after one or more children, in addition to the myriad other duties which fall on the parent at home, far exceed those of other members of society... We should be slow to characterise as negligent the care which ordinary loving and careful mothers are able to give to individual children, given the rough-and-tumble of home life [187]
The majority emphasised the 'myriad of other duties which fall [onto a] parent at home'. The familial environment, as opposed to the difficult nature of child raising, provided the majority with the basis for their respective decisions. This demonstrates a reluctance by some members of the judiciary to intervene even in domestic matters.
Parenting: The Boundary of Physical Harm
Some Australian case law provides content as to the proper boundaries of the parental sphere. If the decision exposes the child to physical harm the court will intervene because exposing a child to severe risks is not a normal part of raising a child. Some dangers are incident and related to this function, but others are so foreign that the conduct creating such risks cannot be seen as being parental in nature or purpose. For example in McCallion v Dodd the child was made to walk along a highway with his father. The circumstance of being on a highway and close to extreme physical danger made the parent's decision justiciable.[188] Similarly in Bye v Bates the plaintiff's injuries were described as 'shocking and disfiguring', thus making the severity of the potential injuries a factor in determining what is properly seen as parenting.
It is equally arguable that the parent's oversight in Robertson and Posthuma exposed their child to severe danger and thus a duty should follow. Yet any apparent inconsistency on the basis of this argument is easily reconciled. In Posthuma Jacobs' J factual analysis held that a dog is not necessarily a dangerous animal, thus there was not necessarily any risk at all. However with Robertson, the authority of McCallion suggests that the parent was negligent. Both cases dealt with a parent's failure to properly supervise a child while near a roadway. McCallion suggests that injury in such circumstances is negligent and a duty should follow.[189] The cases are, however, factually distinct. In McCallion the parent made the child walk along the highway, while in Robertson the child slipped past his parents to play on the front lawn. One involved a deliberate assumption of responsibility, while the other was a 'momentary oversight'.[190] Thus the circumstances in which the risk arises will be material. The nature or severity of the risk are not determinative. The parental boundary being affected by the degree of physical danger is also evident in Anderson v Smith.
Anderson v Smith
Anderson involved a supervisory decision which is a prima facie parental decision. Despite this Nader J eventually held that the grandmother, standing in loco parentis, was negligent. The plaintiff left her child in the defendant's care. The grandparent's home had a pool, which although was properly fenced, could be accessed through the back door. If secured the door would prevent a child from going to the pool unattended, but failure to do so would expose a child to grave danger. By mere oversight the grandmother failed to close the back door and the child fell into the pool and sustained injuries from which she eventually died.
The Nature of the risk not related to Child Rearing
One could see Anderson as being analogous to Towart. If the domestic decision approach was followed the defendant would have been absolved as presumably there is no difference between leaving a window open and leaving a door open. However Nader's J decision supports the view that leniency applies only too parental decisions. Failure to lock a door in this instance was not parental because it was not a conscious parental decision. As with Bates and Surtees, it was careless conduct and not part of a parent's function in raising a child. Nader J noted that the dangerous mix of children and water is well documented.[191] As there was a pool behind the back door, which is a source of high danger, the conduct was not parental as the risk, presented in circumstances of carelessness and inattention, deprived the incident of being parental.
Similarly in Bye v Bates the risk of severe injury through the parent's failure was not an ordinary part of child rearing. Life threatening situations are not normally part of parenting and such situations do not normally form part of the policy rational for immunity. It is arguable therefore that the nature of the risk which the pool presented in Anderson also prevented the grandmother's conduct from being parental.
Parental and Domestic Decisions - An Unresolved Division
The distinction between parental and domestic decisions is unresolved and the boundary of parental purposes is still unclear. The recent case of Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [192] promised to provide such clarification as it is the first Australian judicial exploration into the issue of whether a child can sue parents for negligent upbringing. In Williams the plaintiff's mother placed her into the Aborigines Welfare Board's custody where she was raised in various institutions. The plaintiff alleged that the Department was negligent in failing to ensure that she would be provided a parental substitute with whom she could form a maternal connection while growing up.
Exclusively relying upon Hahn v Conley, Abadee J stated that;
At common law, no action lies for, in effect, 'bad parenting' or 'bad upbringing', at least by natural parents... Thus for example, had the plaintiff stayed with her mother, and developed a disorder of the type alleged, it would appear that the plaintiff could not have sued her mother.[193]
Abadee's J interpretation of Barwick's CJ statement is interesting.[194] Abadee J did not discuss any of the other authorities mentioned in this paper and therefore did not shed any further light upon the ordinary domestic and parental decision dichotomy that currently exists. This failing is possibly due to the fact that Abadee J was asked to review a course of conduct that extended over eighteen years which would encompass consideration of both types of conduct. In any event Abadee's J judgment does not clarify this issue but in support of his decision and presumably in a quest to provide substance to a parent's moral obligations he quoted Fleming who stated:
There is a consensus that the parents' duty to feed, clothe and maintain and generally care for their child is not enforceable in tort, whatever its moral or other legal (for example criminal) sanctions.[195]
I note that this rationale for leniency has strong similarities to the rule from Goller v White.[196] I also note that Fleming's comments are broad enough to encompass what this paper has identified as ordinary domestic decisions and parental decisions. If Fleming contends this then, with respect, that view is erroneous. Barwick's CJ statement should be interpreted to mean that only that conduct which is parental in nature and purpose is unenforceable in tort. This is the type of conduct that comes within the field of leniency which the law wants to protect.
Conclusion
These authorities show that the test of circumstance is a broad test. I submit that this test encompasses to some degree, or allows the court to consider, a wide variety of policy and factual circumstances. The above analysis reveals several policy arguments (which have been termed the 'Circumstantial Matrix') which a court will tacitly consider in making a decision. A problem with this situation is that the cases often appear to be irreconcilable and this facilitates confusion and contempt for the law.
It is... unfortunate that the principal technique for the desirable result is manipulation of the concept of negligence rather than the recognition of a parental immunity... based explicitly on policy grounds...[197]
Australian law needs a clear articulation of the policy grounds upon which our apparent defacto parental immunity doctrine rests. A strong policy ground observed has been the desire to preserve parental decision-making which has required some discussion on what is a parental decision. Many Justices have commented that a parent's conduct was not negligent as it was an ordinary domestic decision. This is conduct which I submit is more mechanical in nature, and which any person can adjudicate upon as to it reasonableness.[198] Conversely, leniency arguably attaches to conduct which is parental in nature and purpose. This however rests upon implications and deductions based upon an interpretation of the above authorities. These observations are given weight by America's experience on this level. America similarly began with the view, as can be observed with the ordinary domestic decision approach, that conduct within the familial field was immune from the court's consideration. Over time this stance has been relaxed and the courts have arguably moved towards providing immunity only for conduct which in its nature and purpose is aimed at child rearing.
American Law: The doctrine of Parental Tort Immunity

Introduction
This part will provide a review of some significant American decisions which assist in showing that the law's reluctance to intervene in the familial sphere is principally tied to the ideal that parents should be able to raise their child as they see fit. This necessarily requires a court to determine what are properly seen to be parental decisions. American law on this topic is premised on the doctrine of parental immunity. This rule was created by the Mississippi law courts and was adopted by most American states.[199] Daniel J noted that the immunity was applied 'primitively' in its early origins [200] and it has since been refined to reflect the global purpose of the doctrine. Which is (arguably) to preserve parental authority and discretion.[201] Despite these historical differences, American law can offer much to Australia. America's experience in honing in on important areas of parental conduct when affording immunity will be a good guide for Australian courts in deciding what circumstances will create a duty.
Historical Origins - The Great Trilogy
The Mississippi Supreme Court 'created'[202] the parental immunity doctrine in Hewlett v George.[203] Without citing an authority and arguing simply on what they believed to be a fundamental principle of society, a parent (mother) was held to be immune from civil action for injuries caused to her child.[204]
...the peace of society, and of the families composing society, and a sound public policy... forbid to the minor child a right... to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrongdoing, and this is all the child can be heard to demand.[205]
Hewlett formed the first step in what is often cited as 'the Great Trilogy'.[206] The second step, McKelvey v McKelvey [207] similarly argued that immunity was warranted on grounds of preserving familial harmony,[208] while in Roller v Roller [209] the court chose to rely upon other policy arguments.[210] This blanket immunity offered to parents was condemned by most academic writers. Although many agreed in principle that parents should be given some leniency they could not support a blanket immunity for all wrongs.
Family harmony, no matter how valued by society, should not dictate that there be no recovery for rape, assault, attempted murder and the like. To apply an immunity in these cases is to place a value on a harmony that is not present. [211]

Traditional Policy Grounds and their Modern Day Critique
Hollister [212] provides an insightful critique of the various policy rationales. She opines that in modern society none of the traditional policy arguments [213] can support the continued existence of the parental immunity doctrine.[214] Hollister does however acknowledge that the preservation of parental authority and discretion is the most important policy ground to support the immunity and one which has the most relevance to modern society. The concern is that this may allow the courts to deem as negligent, parents who raise their children in an 'unorthodox' manner.
Restating the Doctrine
In response to criticisms of the global immunity, the courts have undertaken an abrogation of the immunity. This abrogation was aimed at preserving parental discretion and family harmony and two approaches have been adopted for this purpose. Some States have argued that immunity should only cover conduct which can be classified as an exercise of parental discretion or authority.[215] Others have rejected the doctrine outright and substituted it with a reasonable parent standard.[216] Specifically the parental relationship should be a persuasive factor in determining what is reasonable.[217]
A discussion of the appropriateness or inappropriateness of these models is not within the scope of this paper. What these models do show is that American law has changed and parents are now immune only for parental conduct or are held to a less stringent standard of care compared to other members of society. The field of conduct to which this leniency is offered helps to flesh out how Barwick's CJ test of circumstance and scope of the moral duties of parenthood should be interpreted. It is arguable that a similar development could be emerging through properly exploring the terms ordinary domestic decision and parental decision.[218]
Boundaries of the Doctrine
The limits which American courts have applied to parental immunity doctrine reveal the underlying policy and the proper boundary to the immunity or leniency offered to parents.
The parent is clearly in the best position to know the limitation and capabilities of his or her own children. These intangibles cannot be adequately conveyed within the formal atmosphere of a courtroom. Nor do we believe that a court or a jury can evaluate these highly subjective factors... [219]
Parents are the experts when it comes to making parental decisions in respect of their child, thus making the review of parental decisions inappropriate if not impossible. However when it comes to reviewing domestic decisions a court can validly take that step.
Does the Immunity attach to a Relationship or to Conduct?
To receive the immunity it is essential that the defendant stand in a parental position,[220] however some American Justices have argued that the immunity exists predominantly by reason of the parental relationship. Such Justices have argued that the immunity did not apply to a given situation due to the existence of an overriding relationship. For example some courts adopted the 'automobile exception'[221] arguing that the relationship of driver passenger supervened the parental relationship. In truth this is no real exception and the better view is that the situation presented a type of activity which the court could review, or the conduct possessed a non-parental purpose.
The immunity does not flow solely from a parental relationship. It also considers the nature and purpose of the conduct. The necessity for the conduct to have the purpose of child development and possess child rearing qualities is revealed in the following authorities.
Felderhoff v Felderhoff
The plaintiff wished to sue his father for injuries caused in the course of the plaintiff's employment in his father's farming partnership. At trial the action was dismissed on grounds of parental immunity.[222] The plaintiff then appealed to the Supreme Court of Texas.
Business Purposes are not Parental Purposes
The main issue discussed by Daniel J was whether the immunity should be extended to acts that occur outside the normal family relationship. Daniel J believed that because this was not parental conduct the policy reasons which argue for immunity were not present. The parent had stepped into another sphere of conduct which the law is capable of reviewing.
We agree... to the difference between acts of parents in the course of business activities as distinguished from those which arise from the discharge of normal parental duties and responsibilities. In the present case, the legal relationship of employer and employee was created... [and] the same legal duties were owed to the plaintiff as to any other employee. These duties... are not nullified by reason of the fact that the father was a member of the partnership and that he is alleged to have committed the negligent acts.... [S]uch acts were... committed in the course of the business... rather than the discharge of parental authority or duties...
...the negligence complained of... occurred in the conduct of business activities wholly outside of the sphere of parental duties and responsibilities...[223]
Daniel J was careful to state that there were two separate spheres of activity in question. There are acts undertaken in the 'course of business' and those undertaken in the 'discharge of normal parental duties and responsibilities'. The parent's actions were not parental and did not warrant the immunity as this was conduct undertaken in the course of a business. This implies a purposive test and thus part of a court's investigation is to ask whether the conduct was undertaken for parental purposes. It is possible to have parental conduct performed by many people,[224] however the immunity will only attach when the conduct is intended to be parental. The immunity applies to,
...conduct which arises from the family relationship and is directly related to family purposes and objectives.[225]
Similarly in Schenck v Schenck [226] the court created the beyond 'family purpose exception' and stated,
There are no impelling reasons for eroding or emasculating the family immunity rule for conduct of either parent or child arising out of the family relationship and directly connected with the family purposes.... In such instances the immunity doctrine is neither unjust, unreasonable nor without a sound and solid foundation.[227]
The same rationale of the conduct possessing a parental purpose has been applied for conduct which is abusive. Abuse has no parental purpose and is not covered by the immunity.[228]
Nature of the Conduct: Purpose is not Determinative
Conduct therefore must be parental in purpose for the immunity to be considered. However the purpose behind a decision or conduct is not determinative because Jilani v Jilani [229] demonstrates that conduct must also be parental in nature for the immunity to apply. Mrs Jilani and her children sued Mr Jilani for injuries suffered as a result of his negligent driving. The family was on a vacation and the car drive was undertaken in furtherance of that purpose.[230]
Prima facie driving is non-parental as it lacks the discretions and intangibles which normally prevent the review of parental conduct. Yet the court in Felderhoff had commented that recreation was a parental activity and that such activities should be protected by the immunity. When one considers that the car drive was in furtherance of a vacation the purpose limb is satisfied and immunity should follow. Despite this the court concluded that this was not the type of parental discretion envisaged by Felderhoff. [231] The immunity did not apply because while undertaken for domestic purposes it was not parental in nature. Driving is an ordinary activity and does not contain any child rearing quality or intangible beyond a court's proper comprehension.
...the act of driving involves neither child rearing techniques nor parental authority and discretion. Decisions in these cases, therefore, do not interfere with parental prerogatives.[232]
Similar views were expressed in Cates v Cates [233] where the court reasoned;
...such conduct [driving] 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.[234]

Conclusion
From this brief review one can argue that American law looks at the nature and purpose of the task which the parent engages in. It is not sufficient to show that the parent performed a particular act, or that the act was engaged in for domestic purposes. The purpose or nature of the activity in itself will not determine the issue. The court will only afford leniency when the parent performs an activity which is parental in nature and purpose.
As was alluded to in the early parts of this part it is essential, for the immunity to apply, that the defendant stand in a parental relationship with the plaintiff. The existence of a parental relationship has been the key method of restricting the application of the immunity. "...the delicate nature of the task..." will now explain who has been regarded as standing in a parental relationship to a child.
"...the delicate nature of the task..."

Introduction
American courts have historically argued that a parental relationship can only exist if the defendant is the parent (blood or adoptive) or relative of the child. This had led to many American courts refusing to offer leniency to foster parents as they do not stand in a parental relationship to the child. The principal reason for this is that foster homes are not truly familial environments as the source of the foster homes parental obligations lie in contract. Australian courts have not placed much emphasis on the source of the parental responsibility however the issue has only recently been raised, and arguably was not thoroughly discussed. Therefore in Australia the issue of whether foster homes stand in a different position to blood relatives remains open. I submit, as many American authorities have subsequently shown and which Williams implies, is that the law offers leniency to those who have parental responsibility rather than those who have a blood connection to the child. The law in this sense adopts a functional analysis as it looks to the function being performed rather than to the existence of a blood connection.
Some American authorities have emphasised the fact that the source of the parental relationship will determine the issue and do not look at the function being performed. The courts argue that the immunity was traditionally intended for blood family and this is the extent of its application. Other American authorities have expressly disapproved of this view arguing that this places form over substance. They implicitly support the view that it is the parental function which the courts treat with leniency rather than the blood connection.
Traditional Position of Foster Parents
Historically American courts have focussed upon their notion of the familial unit.[235] The doctrine was originally framed to protect the family and therefore this is the immunity's proper boundary. Smith v Organisation of Foster Families for Equality and Reform [236] is the oft cited authority when dealing with foster parents.
Thus the importance of the familial relationship, to the individuals involved and to the society stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays in 'promoting a way of life' through the instruction of children... as well as from the fact of blood relationship. No one would seriously dispute that a deeply loving and interdependent relationship between an adult and a child in his or her care may exist even in the absence of [a] blood relationship. At least where a child has been placed in foster care as an infant, has never known his natural parents, and has remained continuously for several years in the care of the same foster parents, it is natural that the foster family should hold the same place in the emotional life of the foster child, and fulfil the same socializing function, as a natural family. For this reason we cannot dismiss the foster family as a mere collection of unrelated individuals. But there are also important distinctions between the foster family and the natural family.
In many of the cases discussed, the foster family was not regarded as generating emotional attachments that derive from daily association. These 'important distinctions' have been the foundation for later courts to artificially distinguish foster parents from natural family. This focus on 'family' and the existence of emotional attachments misses the point or rather a point of the immunity doctrine. The immunity is offered not only to preserve familial harmony, which presupposes the existence of a family itself, but it also acts to preserve parental decision making. It is arguable that one simply follows the other, that is, you cannot be a parent without the relevant child being part of your family. Yet a foster parent does fulfil the same function as a natural parent and it should follow that those exercising the powers and responsibilities of a parent, should, in the absence of other compelling policy reasons,[237] be afforded the same protection.
Some Australian commentators have expressed analogous views to those in America. Foster parents and institutions are not family, they are essentially businesses, and the community expects higher standards from them. Therefore they should not receive the same privileges of natural parents. Familial abuse investigations are guided by the principle of minimally intrusive intervention, based on societal values of the privacy of the family and the minimalist role of the state. There is considerable allowance made for a broad range of parenting practices... It is common practice for abuse in care responses to similarly intervene only at the serious end of the scale... This practice is the result of the unquestioning and inappropriate application of the above principle. Whilst such leniency may be applicable to familial abuse, it is incompatible with formal care institutions where the community expects that agencies and institutions provide better than minimally adequate care for children.[238]
This criticism is valid, but its point is not directly applicable to the issue being discussed. A parent, and those in loco parentis, must be held liable for abuse. However poor or inadequate parenting is something quite different.[239] There is no cause of action when the moral obligations of parenting are poorly performed yet when that parental conduct becomes abusive the law must intervene. No party, whether natural parent or caring institution, can be held immune for acts of abuse, but acts of parenting stand in a different sphere. Forward explains that considerable allowance is made for a broad range of parenting practices. Her concern is not with parenting, but rather with abuse, a distinction which is crucial in this paper. Forward, by expressly referring to abuse, supports the view that those performing the parenting function should be given considerable allowance.
However America has been slow to follow this argument. Despite serving the same functions as a normal parent, foster parents have until recently been consistently held not to be in loco parentis. Undue importance has been placed upon the source of the connection rather than the exercise of parental authority and discretion. American courts have suffered from the problem of placing substance over form and courts implicitly did not believe that the foster home should be treated analogously to a natural family. This view has changed, and the courts now have moved away from an investigation as to whether a family exists, to whether the party performs parental functions.
Original Argument: Source of the Parental Relationship is Determinative
Mayberry v Pryor [240] was initially dismissed on account of the immunity, but on appeal it was argued that the immunity did not apply to foster parents. It was held that foster parents were not in loco parentis because the source of the parental relationship was contract. The status of in loco parentis is awarded only when there is a blood or adoptive relationship. The foster care situation was not familial because a contract between the State and the foster parents defined the relationship.[241]
The goal of foster care is not to create a new family but to provide a temporary, stable, non-institutional environment for the child, while the natural parent attempts to remedy the problem which caused the child to be placed in foster care. The foster parents are compensated for expenses... and they... are subject to Department of Social Services inspection. Failure to conform with [these]... guidelines could result in a suspension of the foster care license. [242]
Garson is critical of the Supreme Court's reasoning in this case although similar reasoning has been previously accepted. Andrews v County of Otsego [243] held that the immunity could not be offered because of the contractual origins of the foster care arrangement. Smith v Organisation of Foster Families for Equality and Reform [244] similarly held that the State's assistance in creating the parental relationship deprived the situation of the essential quality of being familial. The court emphasised the non-voluntary nature of the relationship and the strong expectation that the relationship should come to an end.
...whatever emotional ties may develop between foster parent and foster child [they] have their origins in an arrangement in which the State has been a partner from the outset... [T]he claimed interest derives from a knowingly assumed contractual relation with the State... [245]
Garson believes that analysis of this type misses the point. A court should be looking at the relationship itself rather than the origins of the relationship. This denies the reality and effect of these emotional ties.[246]
The Psychological Family
An interesting approach observed by Garson is that some authorities seek to avoid some of the problems from this analysis by showing that a family structure did not exist.[247] The relationship was so transient that a psychological family could not come into existence. These authorities concede that the foster care situation can create an in loco parentis relationship, but the court must be able to see that the parties have developed familial ties in a psychological sense. Garson sees this as a more sensible approach.
If a family has been created, even through contractual origins, it can be argued that it deserves the same protection's as any natural family because it is the unit itself that is valued, not the method by which it comes into being...
...The foster parent makes daily decisions based upon the same criteria as a natural parent, not upon the legal document that created the relationship. In applying the immunity, the court should discount the relevance of the contract and place more emphasis on what the contract has created. [248]

A Question of Balance - Functional Analysis
The issue of the existence of a true family and the existence of emotional ties however should not be the court's role. Firstly family is a dynamic concept incapable of definition, or rather, inappropriate for definition when the courts are bound by stare decisis. The doctrine of precedent would not allow the concept of family to freely change as it has done. Secondly there are difficult issues of evidence regarding the proof of such emotional ties. The better and safer approach is to take a functional analysis of the situation. This will promote objectivity and impartiality in judicial investigation. A Justice will not be required to decide 'what is family?' or whether 'a psychological family' or 'real emotional ties' existed.
For example the court in Mitchell v Davis [249] disagreed with Mayberry and resolved to extend the immunity to the foster parents.[250] The immunity was extended in a qualified form and foster parents were only immune from claims of 'simple negligence'.[251] Leniency was offered not because of the blood relationship, the existence of emotional ties or due to a psychological family, but because of the function performed by the foster parents. The court concluded that the parental function of foster care entitled foster parents to some protection from negligence claims. [252]
They contend that foster parents provide religious and social instruction to the foster children in their home... [Also] [f]oster parents provide food, shelter, and discipline for children in their homes. Foster parents must also try to meet the emotional needs of the children. Therefore foster parents should be afforded some protection by the parental immunity doctrine. However, the use of the parental immunity doctrine by foster parents should be limited, because of the nature of foster care.[253]
The court reached a balanced conclusion believing that foster parents should not benefit from the full immunity because foster parents differ from natural parents and others who stand in loco parentis as there is no relationship by blood, marriage, or adoption. However fairness and a more functional view of the family demanded that some leniency be offered. Similar views have been expressed in England. Simon Brown LJ in H v Norfolk County Council,[254] in quoting the trial judge stated,
I understand [the] ...point that there may usually be a stronger bond between child and natural parent, nevertheless the principle of the matter would be applicable in the case of a foster parent as well as in the case of a natural parent... The delicate nature of the task [parenting] is there... whether it be a natural parent or a foster parent. [255]
A similar functional analysis is evident in Williams. Abadee's J preliminary comments saw no significant distinction between the fact that this was institutional care as opposed to natural familial care.
...the decision is one that concerns the bringing up of all children, of parenting generally, irrespective of the child's race, sex, colour or creed.[256]
This acknowledgment supports the view that the law rewards the function being performed above the preservation of familial harmony. It should be noted that although Abadee J saw the parent child relationship as helpful, he did not actually see the relationship between the Aborigines Welfare Board and the plaintiff as parent and child.[257] This again supports my principal submission. The implicit finding that this was not a parental relationship is insignificant. What was important for Abadee J is that the Aborigines Welfare Board were responsible for raising the plaintiff. As they were entrusted with the delicate nature of parenting they should be afforded some of the rights and privileges provided to natural parents.
Reliance Upon Hahn
Although Abadee J relied upon Hahn v Conley the circumstances between Williams and Hahn are quite distinct. The obvious point being that one was a natural familial situation while Williams dealt with institutional. Such an argument would resurrect the arguments from Mayberry and Andrews which have been shown to be inappropriate. For Abadee J, the jump from natural family to institutional care was not a significant one for the issue of negligent parenting.
If there be a public policy reason for not permitting a child to sue a parent for 'bad upbringing' or in respect of upbringing generally, I do not see why the same public policy reason ought not to apply where the upbringing is done by another (whether voluntary or compelled). If the parent has only a moral duty (not a legal duty) of upbringing, with a liability to a child essentially only arising from a specific particular situation occurring and not from the relationship of parent-child itself, one can see good reason for concluding that such should similarly be the situation in an upbringing relationship of the type presently under consideration, however it be described. Were it to be otherwise, a higher duty would or could be imposed on the third party (whether it be the Board, a State charitable institution, or a voluntary charitable religious home or even an adopted or foster parent) bringing up the child, than on the natural parent.[258]
Abadee J sees no sound reason for not affording the same leniency to non-natural parents. Implicitly the underlying rationale for Abadee's J holding was that as the function performed by both bodies is the same they should be treated the same. Thus echoing (to some degree) the arguments expressed in Mitchell v Davis.[259]
Conclusion
It appears that three arguments have enjoyed judicial favour at various stages. The source of the parental obligation and the existence of emotional ties were two approaches that have been utilised. The apparently new approach adopts a functional analysis to the issue of whether a parental relationship exists. This is a fairer and safer means of addressing the issue of parental leniency as it avoids the imposition of the Judiciary's ideals on family, which would be, at least for a time, frozen by the doctrine of precedent until that court, or one superior, changed its views by the cycle of litigation.[260]
Approaching the Questions

Introduction
It is acknowledged that the issue of the proper treatment of substitute carers has not been authoritatively decided in Australia. However the comments by Abadee J and the guide provided by American and English law indicates a path that will probably be adopted. Assuming that a functional analysis is adopted by a superior court (as it ought to be) the only remaining issue to explore is how the issue of leniency will be approached and which policy argument for leniency will be most persuasive.[261] It is beyond the scope of this paper to explore the application of all the various policy arguments behind the leniency afforded to parents.[262] This part will therefore demonstrate the issues relevant to applying the test espoused in this paper, that conduct must be parental in nature and purpose for leniency to be given.
Individual Justice
It must be stated that the story of the Stolen Generations is tragic, but misfortune does not provide a remedy at law. It must be remembered that a court of law is not a forum for emotion, it is a body that administers the law.[263] Irrespective of how worthy a plaintiff's claim may be, or how sorrowful their story, neither can have a bearing upon the ultimate outcome. A court must be fair to the plaintiff and the defendant. Thus the law accepts that mistakes will be made, and that people, even entire races, can be in the wrong place at the wrong time. Many injuries, although caused by an individual's conduct, will go uncompensated.
Nor... can it be said that all human relationship problems, including those of nurture and nature can always be the subject of solution by law. Matters concerning their emotions, their level and content, happiness, and other natural relationships are not readily susceptible of resolution by the courts.[264]

The Focus on the Familial Relationship
As "American Law" explained, a significant policy ground of the immunity doctrine was a desire to protect and promote familial harmony.[265] It was this focus on family which prevented the immunity's application to foster homes. The court's inquiry has often been an exercise of superimposing historical views of the notion of family onto the current context.[266] The notion of family, in the context of a parental duty of care, has never been a concern for Australian law. This is arguably one of the greatest points of distinction between American and Australian law on the issue of a parental duty of care.
In any event, arguments that promote the distinction between foster and natural family cannot be wholly supported on the facts.[267] Sister Kate's and the Children's Cottage Home were part of a special legislative scheme which aimed to remove a child's aboriginality and prevent any contact with their natural family and culture. This necessarily means that many of the traditional ideals of foster care will be inconsistent with the given facts.
Andrews v County of Otsego,[268] explained the differences between foster and natural families which has justified the incongruous treatment of foster homes.
1. Foster parents... are contract service providers. The very existence of the status of foster parent arises out of a knowingly assumed contractual relationship between the State and the foster parents.
2. The natural parent continues to be responsible for the child's support during placement.
3. The foster parent does not assume 'all the obligations incident to the parental relationship... but only those obligations responsibilities assigned by the agency as required by law'... Indeed the 'temporary parent substitute must keep his proper distance at all costs to himself.'
4. Foster parents must strive to provide a stable environment and at the same time, encourage, rather than discourage, the relationship of the foster child and natural parent and ease the return of the child to the natural parent.
5. Moreover, the foster parent-child relationship is designed to be temporary, and the foster parent is obliged to surrender the child upon expiration of the term and perhaps sooner upon the institution of removal proceedings... Although foster parents and children may develop emotional ties, the natural parent retains a paramount right to raise the child...[269]
Although there are similarities between foster care in Australia now and during the later periods of Presbyterian Church control of Sister Kate's Home, they are factually inapplicable to a wide portion of the relevant period.
Factual Distinctions
These distinctions are:
1. Point one is applicable to the situation of both the Children's Cottage Home and Sister Kate's but I adopt the arguments of Garson and the comments of Abadee J. It is unlikely that an Australian court will adopt an argument that places form over substance.
2. The natural parents were not responsible for the child's support during placement. The main focus of this paper is the denial of the natural family's involvement with the child. It is factually inconsistent for a potential plaintiff on these grounds.
3. For all intents and purposes, the Home did assume 'all the obligations incident to the parental relationship.' The Home was intended to be the new parents of the Stolen Generations and raise them in white ways.[270]
4. In stark contrast, the Home adopted a policy whereby any relationship with natural family was actively discouraged. This was consistent with Parliament's overall statutory objective of taking the children from the circumstances of temptation and idleness so they could become worthwhile citizens.[271]
5. The foster parent-child relationship regarding the Stolen Generations, was not designed to be temporary. It was intended that the Children's Cottage Home and Sister Kate's would keep and raise the child until they could be found appropriate employment. The bonds with natural family were not regarded as paramount and in fact they were actively discouraged.
These comments show that the factual distinctions provided by Andrews which deny leniency are either without substance or factually inapplicable. However after 1963 Sister Kate's adopted a role that was more consistent with Andrews' views on the role of foster care. This consistency could arguably be the foundation of adopting those views. It would be possible for a court to adopt the arguments from Mayberry and Andrews and deny any leniency on the ground that a parental relationship did not exist. As "...the delicate nature of the task..." explained the trend of American, English and Australian law is against this proposition, preferring to adopt a functional analysis.
The legislative policy outlined in "Social Policy and Legislative Framework" is quite clear that Sister Kate's were intended to have parental responsibility. These institutions were entrusted with the task of raising the children in 'white ways'. They were to give them what their parents could not. As the court in Wright showed, the Home gave the children;
...religious and social instruction... food, shelter, and discipline... [and also met] the emotional needs of the children. Therefore foster parents should be afforded some protection.[272]
Thus on a functional analysis the Children's Cottage Home and Sister Kate's stood in a parental relationship to the children. Accepting that a parental relationship existed, is it now simply a process of applying Williams and holding that no duty of care existed in the circumstances?
Does Williams Rule the Day?
The holding in Williams does not automatically mean that the hypothetical situation regarding Sister Kate's and the Children's Cottage Home will be similarly answered. Williams is a very important case due to its current interpretation of Hahn but there are some key factual and legal distinctions which should be drawn out.
Abadee's J judgment is quite clear that the negligence which he is being asked to review was not an isolated incident or single act. It was part of an ongoing obligation of raising the plaintiff. Daily decisions were made regarding the plaintiff's welfare, and it was this general course of conduct over a long period of time which Abadee J was being asked to review.
...the case does not involve what might perhaps be described as a specific single identifiable act or omission occurring at a particular time and constituting, inter alia, negligence. No specific incident, happening or event in the history from 1942 to 1960 is relied upon as giving rise to the plaintiff's claimed psychiatric or psychological conditions. Nor is there any identifiable single casual act of negligence alleged. The conduct (essentially 'omission' conduct) relied upon to constitute negligence is said to have generally been of an ongoing nature throughout the period referred to.[273]
Thus there is the initial factual distinction that the allegation of negligence in this scenario is discrete and isolated. It will not involve an overall investigation into the merits of an individual's parenting ability. This is why Williams must be approached with caution. Williams involved the circumstance of reviewing a department's overall conduct in relation to a child. Abadee J was aware of this crucial distinction with previous cases which held that a parent or someone in loco parentis actually owed a duty of care.
The duty [in these cases] arose in a more limited context... It was not such a case as the present of an action arising from in effect an ongoing 'upbringing' relationship extending over eighteen years.[274]
It would be quite abhorrent to suggest that a parent could have every aspect of their parenting reviewed by a court yet it is quite another thing to suppose that an individual decision or conduct could be reviewed. As the authorities from Chapters Three to Six demonstrate, the courts have no problem in reviewing or attempting to review isolated instances of parental conduct, which thus makes the distinction between ordinary domestic and parental decisions so important. Therefore this crucial distinction prevents any argument of proposing that Williams covers the current facts. Thus the matter must be looked at afresh and by applying the test of whether the decision regarding contact with natural family and its subsequent adoption by later controlling bodies was parental in nature and purpose.
Applying the Test

Can a Decision to deny contact with parents be Parental in Nature?
It seems contradictory to contend that a decision to deny contact with one's natural parents, or family, could be parental in nature. Such criticism however would be addressing the issue too narrowly as the decision in its nature need only be parental. We must therefore look to the type of activity presented, rather than the actual decision or conduct presented.
The decision is parental in nature as it appears to be part of a general category of censorship decisions which parents regularly make. For example, decisions about who their child may see, or what books and movies they view are, broadly speaking, censorship or 'filtering' type decisions. Some parents believe that certain books or movies are unsuitable for their child and they are not allowed to view them. Similarly a parent may want to shield their child from the 'wrong crowd'. Thus the child may not be allowed to go to certain parties or person's homes. These decisions are made because the parent is protecting the child from influences which they believe are potentially damaging. Similarly in the current context, Aboriginal parents and culture were believed to be the 'wrong crowd'.[275]
There is a large number of absolutely worthless black and half-castes about who grow up to lives of prostitution and idleness; they are a perfect nuisance; if they were taken away from their surroundings of temptation much good might be done with them. [276]

The decision, given these community views, was part of general form of censorship which every parent engages in to some degree.
Parental in Purpose

Sister Kate
It is unlikely that any plaintiff arising from the period of control by Sister Kate could sue for negligence. The evidence suggests that her decision can only be seen as being parental in nature and purpose. It is foolish to expect that Sister Kate would compromise her life's work and that of the CSC, simply because of Governmental directives. As has been noted, Sister Kate knew of only two authorities and given the history of her defiance with Le Fanu and Neville, it is going against proven fact to contend that she would discard all that she held important to follow Governmental directives. The only reasonable conclusion that can be reached is that Sister Kate, for all practical purposes, was the parent of the children in her care and that this decision was a parental decision.
The Administrators and Presbyterian Church
The issue of parental purposes is not so clear in respect of the Administrators and the Presbyterian Church. There are facts which suggest that these bodies operated in close connection with the Western Australian Government, and relied heavily upon the practices established by Sister Kate. This reliance on past practice or close involvement with Government may suggest that the powers and responsibilities of the respective authorities were not exercised for parental purposes. The parental powers may have been simply an extension of Government policy, and in short, Sister Kate's Children's Home may have acted at the behest of Government, to the point that they were the puppet of Government.
Similarly the Administrators and Presbyterian Church may have blindly followed the policy on parental contact simply because it was a policy developed by Sister Kate: the logic being that as Sister Kate's methods had generally produced well adjusted children, why change? 'If the wheel isn't broken, why fix it?'
If this interpretation of the facts is correct it would be difficult for these bodies to convincingly argue that the policy regarding parental contact possessed a parental purpose. I am not suggesting that a parent cannot receive guidance, as rarely does a parent 'go it alone' completely. Most parents receive some form of assistance, whether it be from their own parents, or from volunteer care-givers (like Sister Kate) as to how certain difficult issues should be approached. Similarly a fundamental purpose of Government is to advise its citizens, and naturally this advice could extend to views on child care.
However it is one thing to receive advice which is then 'taken on board' and processed by the parents themselves, so they can then determine what is best for the child. But it is quite different to avoid any conscious effort to actually engage in the parenting function. A parent cannot blindly follow the directions of any person and argue that the adoption of such views possesses a parental purpose. To receive leniency one must actually engage in the delicate task of parenting. This would require some evidence of deliberation by the parent, or responsible authority, as to whether the advised course of conduct was in the child's best interests. Failure to show some form of due consideration by the Administrators or the Presbyterian Church, would work against an assertion that the decision regarding parental contact had a parental purpose. Conversely evidence which showed that the policy on parental contact was not blindly followed, would strengthen an assertion that this policy did possess a parental purpose.
Abusive Purpose?
However even if it is shown that the Administrators and Presbyterian Church actually considered the implications of adopting the policy, it may not follow that the policy was parental in purpose. The policy itself may be characterised as a malicious use of influence by Government, or a policy that society could no longer support. Simply put, the policy may have been imposed for purposes of abuse rather than the development of the children. It was commented in Mace v Murray that 'the natural ties between mother and child ought not to be lightly broken'.[277] Presumably such comments are applicable to the bonds of natural family, thus demonstrating the concern about decisions to separate children from their natural family. This concern may indicate an awareness that such decisions, if not properly made, could be regarded as abusive. If this was the case, immunity would not be afforded on grounds that this was an abusive decision which lacked a parental purpose.
Conclusion
Assuming that a functional analysis is adopted to determine the existence of a parental relationship, and the status of being 'in loco parentis', the remaining issue to determine is whether the circumstances justify the imposition of a duty of care. The only circumstances which demonstrate that duty should not be imposed, is when a parent's conduct is parental in nature and purpose. The decision regarding the refusal to allow contact with natural family is a decision which was parental in nature as it arguably forms part of a general category of censorship. Whether the decision possessed a parental purpose is unclear. The evidence surrounding Sister Kate strongly suggests that her initial decision was motivated by concerns for the children in her care, and thus demonstrating a parental purpose. However the evidence surrounding Administrative and Presbyterian Church control is not so equivocal. The evidence suggests that these bodies did not necessarily have the immediate concerns of the children's development in mind when adopting this stance on parental contact. This evidence would have to be closely scrutinised when determining the purpose for this stance.
Concluding Comments
This paper has been devoted to investigating the question of whether the decision by Sister Kate, and subsequent controlling bodies, to prevent contact between Aboriginal children and their natural family could be deemed negligent. Principally this paper has addressed the question of whether these homes stood in a parental relationship and if so could the children still maintain an action in negligence?
My conclusions to this two-fold question are as follows. The issue of whether the Home was family to the children is, in any event, immaterial. Authorities which suggest that a familial or blood connection is material to the existence of any immunity offered to a defendant are, with respect, incorrect. As has been consistently stated throughout this paper, the source of the parental obligation, whether it lie in blood, contract or statute, is immaterial. What is significant is the imposition or assumption of the function of parental responsibility by the party.[278]
Having established that the party possesses parental responsibility the issue of immunity or leniency must then be addressed. As Chapters Three and Four explained, the law seemingly distinguishes between domestic and parental decisions. The immunity should attach to parental decisions as these decisions embody the law's overall objective of preserving a parent's right to raise their child as they see fit. It is insufficient to show that the conduct or decision is capable of doing this, it must be shown that the parent has made a conscious decision that will assist in the child's development.
With this understanding I conclude that for the Stolen Generations, and any child generally, it does not matter if we are family. If a parental relationship exists in a functional sense, and my conduct is parental in nature and purpose, you cannot sue me for damage flowing from such conduct.
*I would like to offer a short word of thanks to the following people. Firstly my supervisor Tony Buti for his understanding and assistance throughout this paper. My parents John and Maxine and my sister Claire for their support and encouragement. To Emma for her advice and intellectual stimulation, without which this work would not have been tolerable or achievable. To Mary Rose for her last minute help in proof reading. Lastly to my friends and workmates who seemed to be genuinely interested in my progress and who always nodded reassuringly at the right times.
Table of Cases

Adelaide Company of Jehova's Witnesses Inc v Commonwealth (1943) 67 CLR 116 Anderson v Smith 1990 101 FLR 34
Andrews v County of Otsego 112 Misc 2d 37, 446 N.Y.S. 2d 169 Anns v Merton LBC [1978] AC 728
Bye v Bates (1989) 51 SASR 67
Carmarthenshire County Council v Lewis [1955] AC 549 Church of the New Faith v Commissioner of Pay - Roll Tax (Vic) (1983) 154 CLR 120 Collett v Hutchins [1964] QdR 495
Cubillo v Commonwealth of Australia [1999] FCA 518 (30 April 1999) see - www.austlii.edu.au/do/disp.pl/au/cases/cth/federal_ct/1999/518.html Dunlap v Dunlap 84 NH 352, 150 A 905 (1930) Felderhoff v Felderhoff, 473 SW.2d 928 (1971) Foldi v Jeffries 93 N.J. 533, 461 A.2d 1145 (1983) Gala v Preston (1991) 172 CLR 243
Goller v White 20 Wis. 2d 402, 122 N.W. 2d 193 (1963) Gibson v Gibson 479 P.2d 648 (Cal 1971) H v Norfolk County Council [1997] 1 FLR 384 Hahn v Conley [1971] 126 CLR 276
Hargrave v Goldman (1963) 110 CLR 40
Hewlett v George 68 Miss. 703, 9 So. 885 (1891) Holodook v Spencer 36 NY 2d 35 (1974)
Horsley v Maclaren (The Ogopogo) (1971) 22 DLR (3d) 545 (SCC) Hurst v Campitell 539 So.2d (Ala. 1989) In Re Diana P. 424 A.2d 178 (1980)
Jaensch v Coffey (1984) 155 CLR 549
Jilani v Jilani 767 SW 2d 672 (1988)
Kars v Kars (1996) 187 CLR 354
Kerr v Allen (1995) ATR 81 - 323
Kruger v Commonwealth (1997) 146 ALR 126 Krygger v Williams (1912) 15 CLR 366
Lynch v Lynch (1991) 25 NSWLR 411
Mace v Murray (1955) 92 CLR 370
Mayberry v Pryor 374 N.W. 2d 684 (Mich 1985) McCallion v Dodd [1966] NZLR 710
McKelvey v McKelvey 77 SW 664 (Tenn. 1903) Mitchell v Davis 598 So 2d 801 (Ala. 1992) Nudd v Matsoukas 131 NE2d 525 (Ill. 1956) Nulyarimma v Thompson [1999] FCA 1192 see - www.austlii.edu.au/au/cases/cth/federal_ct/1999/1192.html Pedigo v Rowley, 610 P.2d 560 (1980)
Posthuma v Campbell (1984) 37 SASR 321
Pyrenees Shire Council v Day (1998) 192 CLR 330 R v Eketone [1995] QCA 301 (11 July 1995) see - www.austlii.edu.au/do/disp.pl/au/cases/qld/QCA/1995/301.html R v Kerbatieh [1997] QCA 30 (7 March 1997) see - www.austlii.edu.au/do/disp.pl/au/cases/qld/QCA/1997/30.html R v TakTak (1988) 14 NSWLR 226
Regina v Walters [1998] NSWSC 345 (24 March 1998) see - www.austlii.edu.au/do/disp.pl/au/cases/nsw/supreme_ct/1998/345.html Rigdon v Rigdon, 465 S.W.2d 921
Robertson v Swincer (1989) 52 SASR 356
Rogers v Rawlings [1969] QdR 262
Roller v Roller 79 P.788 (Wash. 1905)
Romeo v Conservation Commission (NT) (1998) 192 CLR 431 Rosencrance v Rosencrance (1995) 105 NTR 1 Sandoval v Sandoval, 128 Ariz. 11, 623 P.2d 800 Schenck v Schenck 100 Ill. App. 2d 199, 241 NE 2d 12 (1968) Smith v Leurs (1945) 70 CLR 256
Smith v Organisation of Foster Families for Equality and Reform 431 U.S. 816 (1977) Sneed v Sneed, 705 SW 2d 392 (1986)
Stallman v Youngquist 129 Ill. App. 3d 859, 473 NE2d 400 (1984) Surtees v Kingston-Upon-Thames Bourogh Council; Surtees v Hughes and another [1991] 2 FLR 559 Sutherland Shire Council v Heyman (1985) CLR 424 The Queen v Kendall Matthew James (1993) 113 FLR 247; [1993] ACTSC 58 (23 June 1993) see - www.austlii.edu.au/do/disp.pl/au/cases/act/ACTSC/1993/58.html Towart v Adler (1989) 52 SASR 373
Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor [1999] NSWSC 843 (26 August 1999) see - www.austlii.edu.au/do/disp.pl/au/cases/nsw/supreme_ct/1999/843.html Wright v Wright, 213 Va. 177, 178-79 & 191 SE 2d 223, 225 (1972) 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
Table of Legislation

Aborigines Protection Act 1886 (UK)
Aborigines Act 1896 (WA)
Aborigines Act 1905 (WA)
Aborigines Act Amendment Act 1911 (WA)
Australian Colonies Government Act 1850 (UK) Child Welfare Act 1947 (WA)
Commonwealth of Australia Constitution Act 1900 (63 & 64 Victoria, Chapter 12) Criminal Code Act 1902 (WA)
Dog Control Act 1979 (SA)
Education Act 1928 (WA)
Family Law Act 1975 (Cth)
Limitation Act 1935 (WA)
Native Administration Act 1936 (WA)
Native Welfare Act 1954 (WA)
Native Welfare Act 1963 (WA)
Published Materials

Aboriginal Legal Service, 'Telling Our Story' (Perth : Aboriginal Legal Service of WA, 1996) Andrews, Carolyn. L, 'Parent - Child Torts in Texas and the Reasonable Prudent Parent Standard', (1988) 40 (71) Baylor Law Review 113
Balkin, R.P, Davis, I.L.R, 'Law of Torts' (Perth : Butterworths, 1996)
Beresford, Quentin and Omaji, Paul, 'Our State of Mind: Racial Planning and the Stolen Generations' (Perth, Fremantle Arts Centre Press, 1998)
Blackshield, Tony, Williams, George and Fitzgerald, Brian, Australian Constitutional Law Theory: Commentary and Materials' (Sydney, The Federation Press, 1996)
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
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
Buti, Tony, 'Removal of indigenous children from their families: the litigation path', (1998) 27 (2) University of Western Australia law Review 203
Buti, Tony, 'Kruger and Bray and the Common Law' (1998) 21 University of New South Wales Law Journal 239
Cummings, Barbara, 'Writs and rights in the Stolen Generations (NT) case' (1996) 3(86) Aboriginal Law Bulletin pp 8-10
Danaher, Colleen. M.,'Cates v Cates: Illinois' 'Solution' to Tort Litigation Between Parents and Children', (1994) 25 Loyola University Chicago Law Journal 607
Fleming, John. G, 'The Law of Torts by John G. Fleming' (Sydney : Law Book Company, 1998)
Forward, Anne, 'Breach of Duty: A new paradigm for the abuse of adolescents and children in care' (1995) 20 (3) Children Australia 19
Garson, Perry S, 'Parental Tort Immunity and Foster Parents: Mayberry v Pryor' (1986) 9:1 GMU Law Review 197
Grobart, David. L, 'Parent-Child Immunity in Illinois' Loyola University Law Journal (1986) 17 303
Hall, Stephen, '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)
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)
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 409
Hollister, Gail.D, 'Parent-Child Immunity: A Doctrine in Search of Justification', (1982) Vol 50 Fordham Law Review 487
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)
Liu, Michael, 'Robertson & Anor v Swincer - Case Notes' (1990) 17 Melbourne University Law 772
Luntz, Harold and Hambly, David, The Law of Torts in Australia, 4th Ed (Sydney : Butterworths, 1992)
Manne, Robert, 'The stolen generations' (1998) 42(1&2) Quadrant pp53-63
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
McLeod, Chanse, 'Jilani v Jilani: The Erosion of the Parental Tort Immunity Doctrine in Texas' (1989) 28 Houston Law Review 717
Parker, Stephen, Parkinson, Patrick, Behrens, Juliet, Australian Family Law in Context: Commentary and Materials (2nd Ed) (Sydney : LBC, 1999)
Personal Injury 1 Australian Torts Reporter (CCH Australia)
Postler, Charles A. 'Torts - Parental Immunity: A Time for Change' (1983) 25 University of Florida Law Review 181
Rash, M. Mebane, 'The North Carolina Supreme Court Engages in Stealthy Judicial Legislation: Doe v Holt' (1993) 71 North Carolina Law Review 1227
Russell March III, E.,'Parental Immunity Doctrine', (1993) 23 Cumberland Law Review 483
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
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
Storey, Matthew, 'The stolen generations: more than just a compo case' (1996) 3(86) Aboriginal Law Bulletin 4-5
Trindade, F.A, and Cane, Peter, Torts: Cases and Commentary, 4th Ed (Sydney : Butterworths, 1993)
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)
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
Verizzo, David M. 'Child vs. Parent' (1985) The Florida Bar Journal 49
Webb Lovill, Kathryn, 'Frye v Frye: Maryland sacrifices the Child for the sake of the Family', (1986) 46 Maryland Law Review 194
Whittington, Vera, 'Sister Kate: A life dedicated to children in need of care' (Perth, University of Western Australia Press, 1999)
Wingerter, Isabel, 'Parent-Child Tort Immunity' (1990) 50 Louisiana Law Review 1131
Wright, Jane, 'Negligent Parenting - can my child sue?' (1993) 6(3) Tolley's Journal of Child Law 104
Anonymous, 'Harmony or Dissonance? Dzenutis v Dzenutis and the Policy Justifications for Parental Immunity in Connecticut' (1987) 19 Connecticut Law Review 679
Anonymous, '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) 12(173) Capital University Law Review 173
Unpublished Materials

Douglas, Gavin, 'The Removal of Aboriginal Children: A case of breach of fiduciary duty?' Honours Thesis, University of Western Australia, 1997
Leaming Joan, 'Nearly White: Assimilation Policies in Practice in Western Australia at Sister Kate's Children's Home from 1933 to 1964' Honours Thesis, University of Western Australia, 1986
Maloney B, 'The Life and Work of Sister Kate' Honours Thesis, University of Western Australia, 1964
McCracken Jenni, 'A penny for the ponies: the work of the Community of the Sisters of the Church at Parkerville Children's Home (1903-1933)' Honours Thesis, Murdoch University, 1990

Notes

[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..."

AustLII: Feedback | Privacy Policy | Disclaimers
URL: http://www.austlii.edu.au/au/journals/MurUEJL/2000/8.html

Author:	Ashley McDonald BComm, LLB (Hons) (Mur) Murdoch University School of Law
Issue:	Volume 7, Number 1 (March 2000)

Murdoch University Electronic Journal of Law