Why Another Stolen Generation Claim Has Failed in Court

The removal of the eight children of Don and Sylvia Collard from their home at Brookton, 140 kilometres east of Perth, superficially conforms to the “Stolen Generation” or “Rabbit-Proof Fence” stereotype.

Here’s the Collard version. It is December 7, 1961. The Collard children are aged from eight months to ten years. A grandmother gives them all a bath. Don is away on farm work. It is late morning and there is no inkling of trouble.

A car, an old black or grey Austin, comes up the road, driven by a missionary, Ms Jones. The mother flees to avoid the pain of any mother’s worst nightmare. The children’s grandmothers are shouting.

Ms Jones “takes” the children without warning or authority. The girls are issued with red tartan all-in-one pinafores, white tops and brown sandals, and the boys get into shorts, a T-shirt and a short-sleeved shirt.

They all crowd into the car (it is hard to visualise, but this happened), thinking they are going for a ride or a picnic. But as the car travels on, they realise they are being taken from their parents and they all begin crying.

The car gets to Sister Kate’s in Perth, where the children sit around waiting while forms are filled, and then Ms Jones leaves in the car. The children’s years at the now-notorious Sister Kate’s are marked by hard manual labour and severe punishments …

The actuality was a far cry from the stereotype. For a start, the hard labour at Sister Kate’s was nothing more than cottage mothers’ rosters of children’s chores, and the severe discipline involved naughty kids getting hit with a fly-swat.

It took Justice Janine Pritchard in the West Australian Supreme Court 400 pages on December 20 to establish the facts and dismiss the Collard family’s claims for damages from the state over the removal and wardship of nine children taken between 1958 and 1961.

Don and Sylvia Collard are now eighty and eighty-one. They and seven of their children, Glenys, Ellen, Eva, Wesley, Beverley, Darryl and Bonnie, sought damages from the West Australian government. Four other children, Glen, Sylvia, Donald and William, are deceased. After the removals the parents had three more boys, Joseph, Phillip and Ashley.

The court got to the facts of the December 7 removals. The Collards lived in a humpy on the block of Sylvia’s mother, Bessie Ninyette, next to the Brookton native reserve. Some days earlier, the parents were served with a summons by Constable Wall to attend the Children’s Court on December 8 over a Department of Native Welfare application to have the children declared neglected.

The parents canvassed their options with the missionary, Ms Jones. They agreed the best option was to get the children into Sister Kate’s on a private basis, where the eight could stay together and be easy to visit. The parents agreed to let Ms Jones drive the children to Sister Kate’s for voluntary admission on the parents’ behalf, after reassuring the children they were going for a ride or holiday. Don would pay seven shillings and sixpence per week per child for maintenance.

The parents’ intention was that when they could upgrade their housing from humpy standard, and Don could get proper work, they could re-collect the children. “We thought it was a way of beating the authorities,” Don said.

But the Children’s Court magistrate hearing went ahead anyway the next day. The children were declared neglected, based on squalid conditions and parental drunkenness, and made wards till the age of eighteen or until the parents’ housing improved. The magistrate severely rebuked Sylvia and Ms Jones for failing to present the children in court as required.

The court was told the humpy was of iron and bags, divided into two rooms, with three beds for ten people, and dirty and squalid conditions. The “Departmental Opinion” was: “Parents drink heavily and no provision made for children. No food, water or sanitary convenience at the home when inspected.”

Beverley’s recollection of humpy life in 1961 was a double bed and a single bed:

She remembered that Don and Sylvia slept in the double bed with Glenys, Eva and Beverley. Donald, Darryl and Bill shared the single bed. When the double bed was too crowded, Beverley would sleep in the boys’ bed, while Wesley used to sleep in a pram or bassinet next to the double bed.

On admission to Sister Kate’s, all eight children had to be treated for trachoma, ringworm and vermin.

Don was earning “good money” or about £25 a week, rising to £40 to £45 a week during shearing. The judge wondered why they remained impoverished, given the humpy had negligible costs and they received some free food from farmers. Don had to pay about £6 a week in maintenance for removed children, but often got into arrears and used stretches in jail to expiate the debts.

Don contributed his own version of the removals in 2002 to a publication, Echoes of the Past: Sister Kate’s Home Revisited:

The thing is we never neglected our kids, no fear, we always looked after them the best we could … I had a summons to appear in court for negligence. We didn’t know what that meant. I mean our kids weren’t neglected or anything like that … We were happy, but the Welfare used to come around and check up a lot. They would hound you and really pressurise you.

The Collard saga of removals in ensuing years runs in all directions. Don would often go to Perth and “steal them back”. The children as they aged also began absconding from Sister Kate’s and from foster parents to return to the humpy—in one case by a 135-kilometre bike ride. Children then “escaped” from the humpy back to their Perth carers.

After the nine children were removed, the Collards had three more, but neglected them. In late 1969 Don left them in an “appalling” state with their grandmother, and they were found there by his sister-in-law. She tracked down Don, who was “in a drunken stupor”, got his permission and brought them up in Perth for six years. The parents separated four times. Sylvia was once hospitalised for three days by Don’s bashings.

The long-suffering Ms Jones, eight years after the above-mentioned Austin car trip, had three girls “dumped” at her door by Don and Sylvia. With a constable, she had to drive them to emergency foster placements in Perth, from which Glenys and Eva absconded. Throughout, the authorities mostly took a pragmatic view, accepting developments they could not control, and generally tolerating illicit reunions as the children grew older.

Most dramatically of all, when Don and Sylvia became grandparents, they transformed their lives. From 1972 they cared for two other children informally, and from 1976 they began conscientiously caring for three children of their daughter Bonnie. From then on they were paid private foster-care rates by the Department of Community Welfare. The parents also bought and sold or gifted four houses between 1978 and 2001.

The family’s case in court alleged failure of the state to properly exercise its “fiduciary duty” to the family. The judge dismissed the case, observing tartly that there was no “fiduciary duty” involved. “Fiduciary duty” is a legal concept involving primary loyalty (normally economic) to a beneficiary, such as between executor and heirs in a will.

The plaintiffs even invoked the original proclamation of the first Lieutenant Governor, Sir James Stirling, on June 18, 1829, as establishing fiduciary duties towards the West Australian Aboriginal population as a whole. The judge said that the essence of state governing is not sectional loyalty but the balancing of competing interests, including the need sometimes to remove children forcibly from parents.

However, the plaintiffs’ case was so broad that the judge tested all aspects of the removals and wardships and ruled them reasonable by the standards of the time (except for officials’ one-time moralistic stance against the Collards’ alleged gambling). The plaintiffs raised the Stolen Generation motive and the judge rejected it.

Commenting on the judgment later, the West Australian Aboriginal Legal Service said it was devastating to “thousands” of Stolen Generation people in West Australian hoping to see the wrongs of the past righted.

(A more pressing problem for the West Australian Aboriginal Legal Service ought to be the current rate of West Australian Aboriginal children removed and in care. At June 2012, it was 1614 children, or one in twenty Aboriginal children, a rate fifteen times higher than for non-Aboriginal children.)

Don Collard, abrogating any personal responsibility for the family’s traumas, said he was bitter that the government had declined the chance to help his family honourably and graciously for all that the family had been through. He said, incongruously in view of the court evidence, “My family was split up, not because we were not good parents, but because we were not white, because we were seen as different.” He asked rhetorically, “Why did I pay maintenance to have my kids neglected, abused and all that by the state?”

The plaintiff’s sub-text in the hearing was that given the children were not neglected, they could only have been taken for racist reasons—stolen. Indeed Sir Ronald Wilson’s 1997 Bringing Them Home report cites the Collard case (without naming it) as an example where the mere existence of poor housing was sufficient reason to declare Aboriginal children neglected and “take” them. Wilson’s evidence was a line from a West Australian official’s note taken out of context and massively contradicted by documents and testimony examined by Judge Pritchard. She found that the children were neglected and in physical jeopardy by the standards of the day, let alone modern standards. The parents, being only human, preferred the “stolen” version:

Bonnie recollected that when she was in her 20s, she had a discussion with Don (and possibly Sylvia) about how she was taken into care. Her evidence was that Don didn’t go into a lot of detail, “he just said we were stolen, he never put us there [that is, in Sister Kate’s]”. Bonnie said Don and Sylvia didn’t give her any details, just that “we were taken”.

Wesley’s evidence was that he talked once with Don about being taken into care, and that Don told him that he had been stolen and that Don had to steal him back. In telling his story for Echoes of the Past, Wesley is quoted: “The only thing I listen to is my father, what he tells me. We were taken away by the Native Welfare from the reserve in Brookton. From what I have been told, wadjelas [that is, white Australians] just turned up and took us away. That was it.”

Justice Pritchard made short shrift of any “Stolen Generation” narrative, though she preferred the term “assimilation”. She found:

The references to “assimilation” in the evidence I have set out above are not sufficient to support a finding on the balance of probabilities that at the time of the wardships there was, within the Department of Native Welfare or the Child Welfare Department, the pursuit of a policy of assimilation of aboriginal people into white Australian society … through the wardship of aboriginal children.

More particularly, there was no evidence that the decisions to apply for each of the Children to be made wards were made in the pursuit of a policy of assimilation of aboriginal people into white Australian society. Rather, the evidence supports the finding that the decisions to apply for the Children to be made wards, and subsequent decisions at various times not to return them to the care of Don and Sylvia, were all made having regard to the welfare—albeit primarily the physical welfare—of the Children …

There was very little evidence of a policy of assimilation … during the period of the wardships of the Children. The only evidence which made any reference to a policy of assimilation was a letter from a bishop in the Kimberley to the Minister for Native Welfare in 1962 in which the bishop noted that “the current official policy of the Native Welfare Department is the policy of assimilation. We regard this as a sound policy because the Natives in the Kimberleys … have been detribalised.”

However, the bishop went on to express his concern about the implementation and application of this policy. He suggested that the Minister should “proceed with caution rather than precipitate the process of assimilation”. A briefing note prepared for the Minister by the Deputy Commissioner of Native Welfare on 19 September 1962 indicated … that “this, I think, is what the various Governments have been doing”.

There was some evidence that Sister Kate’s was thought to facilitate assimilation into white society. But to readers of the transcript, this assimilation was as a result, not a cause, of admittance, and amounted to equal and prejudice-free primary schooling.

The West Australian Aboriginal Legal Service selected the Collards as a test case from among more than 700 candidates on child removals, later whittled down to a dozen. The judge complained of a needless fourteen-year delay by the Aboriginal Legal Service in bringing the case forward, while witnesses died and evidence weakened.

The Pritchard judgment has made a mockery of Kevin Rudd’s Sorry Day speech of 2008, with its reliance on the Bringing Them Home report and emphasis on “stealings” even post-1970. Rudd:

The 1970s is not exactly a point in remote antiquity. There are still serving members of this parliament who were first elected to this place in the early 1970s …

The uncomfortable truth for us all is that the parliaments of the nation, individually and collectively, enacted statutes and delegated authority under those statutes that made the forced removal of children on racial grounds fully lawful …

This is not, as some would argue, a black-armband view of history; it is just the truth: the cold, confronting, uncomfortable truth—facing it, dealing with it, moving on from it.

In respect of Western Australia, currently home to 15 per cent of the country’s Aboriginal population, there was no policy of enforced assimilation in the 1950s and later, let alone racist removals of children. Child Welfare and Aboriginal Welfare authorities were removing neglected children as a last resort and doing their reasonable best to reunite the Aboriginal families concerned when safe to do so. Moreover, the Collard case established that removals for neglect were treated the same in black or white cases, with parents’ quality of care being the prime factor. Impoverished living conditions on reserves were often an extra factor.

“The alternative way, if the child was left there, it was likely that the child would suffer further harm and in some cases perish,” the then Child Welfare director Keith Maine told the court. His word perish is relevant to the first removal from the Collard parents—baby Ellen at just over five months of age on March 13, 1958, by order of the Brookton Children’s Court. The parents had admitted Ellen in poor condition to the nearby Beverley Hospital a month earlier. They made regular phone calls about Ellen’s condition but it was a month before they visited her. They were shocked to be told by the matron that Ellen had “gone”, but the matron meant the baby had been made a ward for adoption or fostering.

The key surviving document was a file note by Mr John Waghorne, a Child Welfare official, saying the matron had told him Ellen suffered from malnutrition and lack of proper care. Ellen was six pounds three ounces when born but weighed only five pounds when admitted as a five-month-old. (The judge agreed that the loss of weight was “significant”.) Although the baby was now ready for discharge, the home conditions were filthy and dangerous to Ellen’s health, the matron told Waghorne. Waghorne went urgently to check the Brookton home, which he found was an unlined tin humpy of one room with a galvanised iron partition, a dirt floor, and only two beds for the parents and six children. The bedding was dirty and the premises unclean. Waghorne concluded it would be detrimental “and in fact dangerous” to return the child to the “filthy” humpy, so he applied for wardship. (The humpy’s wretched condition remained unchanged a decade later.)

Ellen was fostered from the age of six months by a white family, Mr and Mrs Dwyer of Carlisle, Perth. If I may inject a value judgment, the Dwyers made a selfless, large contribution (as did the missionary lady, Ms Jones). Ellen under the Dwyers’ care never ran away, and grew up happy and well cared for. The Dwyers urged Ellen to be proud of her Aboriginal heritage. Ellen could see her Collard parents, who sometimes brought other relatives along too, as often as she wished, but over time this became infrequent.

One Child Welfare report in 1972 remarked, “Father calls at home quite often. Drinks and puts up tales for money … [Ellen] has no desire to leave this family.”

Sadly, the emotional impact of Ellen’s removal from her birth parents and culture ran so deep that she continues to suffer trauma from it, as do all the surviving Collard offspring. As teenagers, three boys and a girl served time in Perth’s Longmore reformatory and the same girl also spent time in Nyandi maximum security training centre. Three Collard girls became mothers at seventeen or under.

The Collards’ Christmas celebration in 1970 was noteworthy for its divergence from the “stolen” stereotype. At the parents’ request, Child Welfare agreed to allow Beverley, Glenys and Eva to spend Christmas with the parents, who were then renting a house at Kondinin, 140 kilometres east of their Brookton humpy. After official inspection, the house was deemed satisfactory. Don picked the children up from their foster home and Sister Kate’s and apparently took them to Kondinin on December 21. However, in the following three days Don and Sylvia took them from Kondinin back to Brookton. The girls by mid-January 1971 had returned prematurely to Perth and they turned up at the homes of a Mrs McIntyre of Hamilton Hill and a Mrs Bennell. An official made a file note that at Brookton the parents drank and brawled until January 15, when the girls decided to run away to Perth.

Court records show Sylvia and Don were convicted on December 26 for drunkenness in Lennard Street, Brookton, on December 24. They were in custody for two nights, that is, over Christmas.

Sylvia said that by the time she got home, the girls were gone because, quoting her mother, “welfare went there and took them, picked them up”. The judge was sceptical.

Beverley and Glenys were sexually abused at Sister Kate’s and during weekend placements. But they did not report the abuse, even to their parents or well-liked house mothers, until they were adults. They and four other siblings received ex gratia payouts from a West Australian government scheme in 2008–11 for sufferings under wardships.

The parents’ lifestyle delayed re-unification of the family. Don acquired thirteen convictions between 1955 and 1973 for alcohol offences. The charges were drunk (nine), assault (one), drunken and dangerous driving while unlicensed (one), drunken driving while under suspension (one), drunk and disorderly (one), as well as disorderly conduct and resisting arrest, stealing and receiving, and driving while under suspension. Sylvia had three convictions, two unrelated to alcohol.

In 1968 Mr Hill, Child Welfare District Officer, noted, “Whenever he [Don] can get it, he uses his money to buy liquor, belts up his wife whenever he gets drunk, is frequently out of work, and is not keen on it when some falls into his lap”:

On the 8-1-68 I saw Mrs Sylvia Rachael Collard in Narrogin. She told me that a few days before her husband had given her a severe thrashing, and had beaten her up so much that she had spent three days in the Pingelly Hospital. She stated that this sort of thing had now been going on for 20 years or so, and the time had now come when she was scared to go back to him, but what was concerning her was that their six children were all in his care now. She stated that she wanted custody and control of them and Maint[enance] …

The latest baby, Arthur Ashley Collard … was there in the care of old Mrs Bessie Ninyette [Sylvia’s mother], who is really far too old to have the care of a very young baby. When I arrived the baby was crying in his pram and in obvious need of his Mother’s care. According to Mrs Ninyette, she had fed the child. Whilst it was not good, I did not feel that I should remove the child forthwith … Later next week I will visit Brookton again with Miss Saggers and will make an application to have these children “Declared Neglected” if they are still not being properly cared for.

Many official details have been lost over time. The Native Welfare resources were so thin that in 1959 a single District Officer, Terence Long, was supposed to patrol and look after the whole Southern District’s Aborigines.

The parents were in a triple bind on government housing, run by the State Housing Commission. They had to improve their housing to get the children back but couldn’t get endorsement for housing because of their humpy lifestyle. Moreover Don didn’t qualify for Aboriginal housing because he was classed as a “quadroon”. The State Housing Commission was leery of Aboriginal tenants anyway because of poor track records on rent and upkeep.

Footnote: Serious official wrongs were done to Don and Sylvia Collard, but not directly in connection with this lawsuit. At the ages of seventeen, they lived together, Sylvia was pregnant, and they needed Native Welfare’s permission to get married. Rather than agree and give them support, officials recommended they be split up into separate institutions for three months, after which the baby would be born and they could marry. This plan was to deter other under-aged unmarried couples from undesirable behaviour. But there was no institution suitable for Don, so Sylvia only was committed to the Moore River Settlement on June 15, 1950, “during the Minister’s pleasure”. However, by then Sylvia had already had her baby Glen, on May 1, and was breastfeeding. Glen was left behind with Sylvia’s mother Bessie Ninyette. Sylvia said, and the judge accepted, that she did this on the instructions of a policeman. She felt frightened, lonely and isolated at Moore River, missing Don and her baby. After several weeks at Moore River, she was released by discomfited officials and permitted to marry Don on August 12, 1950. Glen died at five months after a short illness.

Tony Thomas wrote on current high rates of removals of neglected Aboriginal children from their parents in the May 2013 issue.