The final factor: Achieving maternal rights in 1930s’ New South Wales

This piece begins our series of blog posts based on articles featured in the Australian Women’s History Network’s Lilith: A Feminist History Journal. Stay tuned for other pieces coming soon!

Margaret: I wrote this play … hoping that Drama might accomplish what … political action had failed to do.

These words occur in the epilogue of the play, Whose Child. They are spoken by the character Margaret Windsor, a fictionalisation of the real-life actress, Emélie Polini.

Millicent Preston Stanley, 1937. Image via Wikimedia Commons.
Millicent Preston Stanley, 1937. Image via Wikimedia Commons.

Written in 1932 by Millicent Preston Stanley (1883-1955), this play marked the climax of the New South Wales campaign for mothers’ rights in their children. Liberal reform initiatives during the nineteenth century in England, the United States and Australia had prompted a questioning of the authority of the centuries-old common law father right principle. This principle empowered fathers, as the “natural guardians” of their legitimate children, to make all decisions without reference to the children’s mothers. As Marilyn Lake has shown, post-suffrage Australian feminists on both sides of the political divide appropriated maternalist discourse to argue for mothers’ natural rights in their children to replace this common law principle.

Australian women’s campaigns met with only limited success, in amended legislation such as the Testators Family Maintenance and Guardianship of Infants Act 1916 while the Infants Custody and Settlements Act 1899 and the Marriage Act 1899 remained in force.

In 1919 Preston Stanley, a lifelong feminist, became President of the Feminist Club of NSW. It was founded in 1914 to work for “equality of status, opportunity and payment between men and women in all spheres”. The Feminist Club equality campaigns included mothers’ custody and guardianship rights in their children. For Preston Stanley, this was both a personal and public issue that occupied her attention for many years.

In 1924 the Equity Court decision in the Ellis v Ellis custody case gave political impetus to the long-running campaigns. Despite acknowledging that the mother, actress Emélie Polini, was of unimpeachable moral character, Justice John Musgrave Harvey rejected her application for custody of her infant daughter, Patricia. The perceived injustice of this decision elevated the case to a cause célèbre.

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Portrait of Emélie Polini holding baby Patricia, 1922. Image via National Library Australia.

According to her papers, Preston Stanley’s initial response was to establish the Emélie Polini Capital Petition. Garnering 15,000 signatures, she presented it to the Minister for Justice, Thomas Ley, in May 1924. Ley rejected the petition on the grounds that it was not “the practice in English-speaking countries to bring in legislation specially for the purpose of upsetting a decision of a Judge”.

Preston Stanley’s 1925 election to the Legislative Assembly, the first woman whose skirts rustled on those sacred benches, provided an opportunity to advance the cause. However, her position on the opposition benches was something of an impediment. Undeterred, in her maiden speech on 26 August 1925, she outlined some of the issues she would pursue, criticised the failure of the legislature to deal with “those great questions which are of supreme importance to women” and berated the men who opposed women’s participation in public life. Despite the tradition of hearing new members’ first speeches in silence, Preston Stanley’s maiden speech was met with hostile interjections from the Government benches, a sign of obstructions to come.

The Private Members’ Bill to amend the existing legislation that she had placed upon the Notice Paper soon after her election was finally listed for First Reading on 2 November 1926. In moving the Bill be read a first time, she compared the more enlightened English Talfourd Act 1839 with the New South Wales laws that did not require judges to consider mothers’ wishes. Not unsurprisingly, interjectors accused her of attempting to overthrow the decision of the highly respected Justice Harvey. In closing the First Reading, Attorney General Edward McTiernan made clear allocated times for Private Members’ business would be strictly observed, another sign of strategies to come.

Her Bill was listed for Second Reading on 16 November 1926. However, the allocated time for Private Members’ business was consumed with answers to questions on notice, including an answer to a previous question from Preston Stanley about “Motorists and Horse Troughs”, and questions without notice, many of them Dorothy-Dixers. Preston Stanley’s Bill was not given a Second Reading on that day, nor listed for debate any day thereafter.

Preston Stanley was not re-elected in 1927. Undeterred, she continued her campaign. However, becoming disillusioned with “deputations, agitations, intimidations, organisations and having pushed the Bill in Parliament and out of Parliament,” she adopted a different strategy. She wrote her political play.

Whose Child interweaves two fictionalised true stories – the Emélie Polini custody case and Preston Stanley’s Private Members’ Bill saga. The two stories merge in Act 4, which comprises a play-within-the-play highlighting a mother’s pain when deprived of her child and the thwarting of women’s reform campaigns. The Epilogue consists of Margaret Windsor’s monologue prior to her on-stage collapse – a disquieting echo of Emélie Polini’s death in 1927.

In November 1932 Preston Stanley hired the fashionable Criterion Theatre, engaged a professional director and actors, issued press releases, placed press advertisements for the “tense throbbing drama of real life of interest to women”, cast herself in the role of the female parliamentarian, and staged a Vice-regal opening night attended by the Prime Minister, the New South Wales Premier, the Sydney Lord Mayor, their wives, and other dignitaries including the Minister for Justice, Lewis Martin.

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Criterion Theatre, early-twentieth-century postcard. Image via History of Australian Theatre Archive.

At the opening night curtain calls, author/actor Preston Stanley dramatically announced that during the interval, Martin had sent a note backstage to say he would give instructions for a Bill to be prepared to “provide for mothers’ rights as so eloquently depicted in your play”. Martin’s dramatic intervention captured the imagination of the press with most reviews, not only in the Sydney press, but across the nation, making only passing comment on the performance itself.

One exception was a Sydney Morning Herald review that appraised the “affecting story”, “well-written passages”, “alternation of comedy and pathos” and “accomplished performances”, while also criticising “one anti-climax [that] follows another” in the final act. This review, rather insightfully, summed up the performance as a ‘deputation of a new kind’. Preston Stanley’s new kind of deputation was successful according to a Western Australian newspaper headline, “Play Achieves Its Purpose.”

Justice Minister Martin introduced the bill in September 1933. After parliamentary interruptions and some vociferous opposition from conservative members such as Alfred Hemsley, it passed both Houses and came into force on 1 November 1934. As Martin stated, the Act “marked the concluding stage of a long struggle waged by women’s organisations” to put both parents on the same footing in relation to child custody.

Despite its assumed success at the time, in 1953 Preston Stanley would identify limitations in the wake of the Mace-Murray case, which would prompt her to mount a further Feminist Club campaign.

Celebrations of the Guardianship of Infants Act 1934 were held by various women’s organisations and Martin and Preston Stanley lauded. Feminist Linda Littlejohn, writing in the Australian Women’s Weekly, proclaimed it “A great triumph … for the women’s cause”, although she did not attribute that triumph to Preston Stanley.

Nevertheless, Preston Stanley, arguably with some justification, indulged in the claim that her play was the “final factor” in achieving what political action had failed to do.

 

Wendy Michaels is a Conjoint Research Fellow at the University of Newcastle. Wendy is currently writing a book about Millicent Preston Stanley, Inventing Millicent: First Female Parliamentarian in NSW. Her article “The Final Factor: What Political Action Failed to Do” appeared in Lilith: A Feminist History Journal in 2013. Additionally, Wendy’s research on child custody and the father-right principle features in the Wiley Blackwell Encyclopaedia of Gender and Sexuality Studies.

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