The Play's The Thing ­ Articles ­ ISAA

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The Play's The Thing

The Play's The Thing

"Whose Child" prompts the Guardianship of Infants Act 1934?

Presented at ISAA Seminar
Charles Sturt University, Bathurst
15 October 2011


Hamlet uses the fortuitous arrival of the players at Elsinore as the pivotal point in his prolonged campaign to expose his uncle's fratricide/regicide. He confesses his confidence in the power of the play to effect this outcome in a soliloquy to the audience:

I have heard
That guilty creatures sitting at a play
Have by the very cunning of the scene
Been struck so to the soul, that presently
They have proclaimed their malefactions.

The play's the thing
Wherein I'll catch the conscience of the king.

In full view of the vice-regal audience, the players' performance of Hamlet's Mousetrap play, the 'Murder of Gonzago', whose plot mirrors Claudius's crime scenario and into which Hamlet inserts lines of his own authoring, prompts Claudius to action. For the watching Hamlet and Horatio Claudius's hasty exit confirms his guilt and thereby justifies Hamlet's revenge, as demanded by his Father's Ghost.

Hamlet of course is fiction. Could this happen in real life?

Whose Child

Apparently so, according to various accounts of the opening night performance in November 1932 at J C Williamson's Criterion Theatre in Sydney of the play Whose Child.1

Publicity for the one-week season was extensive with daily press advertisements in the lead-up week describing the play as a 'tense throbbing drama about real life, of real heart interest to women', an Australian play by an Australian Authoress, with a message for Australian Mothers' that was 'based on the Celebrated Emélie Polini Case and many other cases'. This play has since been described as 'one of the rare examples in Australian literature of a play written in response to a legal judgement'2 and 'one of the most sensational and dramatic stories in the history of reform in Australia'.3 This play, which was professionally produced by George Parker has also been described as 'propagandist … like some of the dramas of Mr Bernard Shaw or a medieval morality play'4 and a 'cloyingly sentimental melodrama'.5

Typically for its time it uses the proscenium arch stage and well-made play conventions. The indoors set for each of the four acts (a drawing room in the Windsor home, their lawyer's office, the chamber of the Legislative Assembly and a theatre) requires realistic furniture and props. The characters (the Windsor family, their lawyers, the politicians, actors and theatre manager, and various servants and ushers) speak naturalistic dialogue with action emanating from a domestic situation - the conflict over child custody. The final act, set in a theatre appropriates the meta-theatrical play-within-the-play convention and on-stage audience, so artfully employed by Shakespeare in Hamlet.

The thesis of Whose Child - the laws of man are at odds with the laws of nature - is established in the opening scene through the 'eternal problem' of the custody of the 'little golden haired' daughter of the separated couple, Margaret and John Windsor. Margaret is revealed in an inner stage scene, singing sentimental songs to her daughter, and insisting that she must, in her prayers ask God to 'bless daddy', while John erupts onto the stage 'truculently' asserting he will 'never give up [his] child' and that 'No court in the country will give the child' to Margaret, his estranged wife, to which she responds:

I can't believe that any Court in the world would give a baby girl of two years of age to a father in preference to a good mother when she can prove she has kept the baby and its father, herself and her home.

This interaction has been preceded by dialogue that alerts the audience to the imminent custody case. Throughout these interactions the men characters, including Margaret's own father, have upheld the patriarchal order while the women characters, including her maiden Aunt Agatha have discoursed on the 'new ideals and loyalties' developing in Australian society.

In the opening scene of the second act the servants' dialogue highlights the impotence of working class women and their desire to change things because men have 'all the say when it comes to the law'. Their comic role-play gives way to sober discourse with the entrance of the lawyer - 'A father's powers are conferred by marriage not by fatherhood' - and his advice relating to their preparations for the custody hearing.

The second scene of this act shifts to the barrister's chambers after the failed case. Here the reasons for the loss of the case are discussed amongst the characters with the lawyers questioning the legality and morality of the jurisdiction issue. 'If a mother can't earn her living within the jurisdiction, does that mean she's got to stay there and starve, in order to have a title to her child?' one asks. The conclusion drawn from the discussion is that the judge's decision was 'legally possible but morally wrong' and that the only solution to this intractable problem is, as Aunt Agatha points out, 'to get the law altered' and this demands a public campaign. A phone call to Miss St John, the only female Member of Parliament sets this campaign in train. The scene then climaxes with a further phone call revealing that following the custody case decision, John has taken the child.

The third act set in the Legislative Assembly highlights Miss St John's frustrations with the attitudes of the members of this otherwise all-male parliament. As in the previous act, the scene opens with the servant classes, in this case the Ushers criticising asinine man-made laws: God gave children to women, so why isn't that good enough for politicians to 'set the Law by' they declare. The Premier's entrance establishes his misogynistic hostility to the 'she-devil', the one female member of the house, Miss St John. He is particularly antagonistic to the public campaign that has been instigated and waged by Miss St John as we see in this outburst:

A Petition signed by 25,000 women … A woman Member of Parliament introducing the Bill. … Parliament pulled at the apron strings of women … we can't pass the Bill, but as a matter of tactics, the position … could, and should have been averted at any cost.

In presenting the women's petition Miss St John refers to the injustices of the Windsor case and points out how this has been perceived by mothers across Australia:

The women of this State declare the judgment in the Windsor case to be a crime against humanity - a travesty upon justice and an intolerable affront to every mother in the Commonwealth. … Let us break the bonds of Party and of prejudice in this one matter and take justice and humanity as our guide.

Margaret Windsor, herself, is permitted to address the house about her plight. In an emotional monologue she speaks of the sacredness of motherhood and the disjunction between natural laws and the man-made laws that have 'robbed' her and many other women of their children. The scene moves swiftly thereafter, through Miss St John's witty rejoinders to various interjections, to the climax - the Premier's adjournment motion designed to gag debate and thereby kill off any chance of legislative amendment. This tactic further enrages Miss St John, who is nevertheless powerless to change the situation.

The last act locates the setting in a theatre eight years later, and shifts the genre to mystery thriller, incorporating a play-within-the-play with a scenario mirroring, but intensifying the custody issues raised in the first three acts. The dialogue between Miss St John and her companion who comprise the on-stage audience for the play-within-the-play highlights the connection between the enacted fiction and the real life situation of Margaret Windsor. Hypnosis, a popular theatrical trope of the time, assists in establishing the mystery of the fictional child's true maternity. As the curtain falls on the play-within-the-play the fictional Theatre Manager reveals to the on-stage audience the actress's identity - it is the same Margaret Windsor from the first three acts who was 'robbed' of her child by the court judgement.

In her curtain call speech Margaret confesses being 'stabbed by eternal longing - tortured by the memory of the little girl that life had carried further away from [her] than Death', and admits to writing this play hoping, (as Hamlet had done) that it would achieve the goal that her petition to parliament had not.

I thought if I could make you see what it does to a mother when you take her baby from her - I knew you would never let it happen again. … so I wrote this play … hoping that Drama might accomplish what human suffering and political action had failed to do.

The Emélie Polini Case

Like Hamlet's Mousetrap play, Whose Child was a fiction that mirrored a real-life situation - the Emélie Polini case. Polini, born in England, had been pursuing a successful acting career there and in the United States when she was engaged by J and N Tait to perform in Australia, where she attracted laudatory reviews as a 'natural heroine' with a 'golden voice' and 'magnetic stage personality'.

Many of the roles she played appear, in retrospect, to be uncannily prescient. In 1919, for instance, in Monckton Hoffe's The Little Damozel and Max Marcin and Charles Guernon's Eyes of Youth she took roles of wronged wives and in 1923 in David Belasco's Madame Butterfly, and Henry Arthur Jones's The Lie, those of wronged women in dispute over children. Jones argued an actor could only reach his 'great emotional scenes' by a 'daring spontaneous instinct',6 but Polini said she was 'in touch with the heart of a woman in grievous pain'.

Polini's appreciation of grievous pain came from her real-life role as the wronged wife. She met Harold Wilfred Ellis, a Lieutenant in the Royal Field Artillery, on the ship from the United States. Wounded on the Western Front he was returning to Australia. She married him in Melbourne in July 1918, continuing her lucrative stage career with seasons in Australian capitals as well as in New Zealand. However, in August 1920 after many triumphant successes, she retired from the stage giving as her main reason that her career made her husband unhappy. He had used all his military allowances to purchase a grazing property in Hartley Vale to which Polini had also contributed her entire savings of £1100 in addition to the £2000 he had borrowed from his parents.

However, her domestic sojourn was to be short lived. Ellis had been far from truthful about his situation and lacking the practical and financial knowledge and skills for managing the property, within two years it was lost to the mortgagee. Polini, who had given birth to their daughter, Patricia, in October 1921, now found herself in a precarious situation, with their only income derived from the sale of her furniture facing a future of poverty and domestic drudgery with a young baby. She and Ellis agreed on a separation for a period of time. In the terms of this agreement he was to seek employment as a jackeroo and fit himself for a future life on the land while she was to return to her lucrative stage career and save as much money as possible so that they might resume their farming life after two years.

Polini adhered to her part of the separation agreement. In March 1922 she was once again treading the boards and from then until April 1924 she worked tirelessly for J C Williamsons in their repertory seasons across Australia. Despite begrudging the time away from her daughter whom she placed with her mother-in-law in her Chatswood home in the care of a nurse whom Polini paid from her substantial theatre earnings. As she explained in an interview in Adelaide in October 1922:

My little girl celebrated the anniversary of her first birthday last Saturday in Sydney. How I should have loved to have been there. I begrudge the time spent away from her, but it is not fair to drag little children about from place to place.7

However, Ellis did not similarly honour their agreement. Instead he moved in with the parents and was supported financially by them making little effort to gain the skills or generate sufficient income to support their daughter. By 1924 he had become dependent upon a ?2 per week allowance from his mother to supplement the meagre ?5 per week he managed to earn from selling newspaper advertising.

When, in 1924, Polini sought 'possession' of her daughter to join her in Melbourne, Ellis refused, an action which led to the Equity court case, heard in camera, in which Justice Harvey, despite finding no 'breath of suspicion against the character' of the wife, nevertheless awarded custody to Ellis. Harvey's decision rested, in part, on the mother having 'assumed the father's role by becoming the breadwinner and providing for the child'8 and never allowing 'her maternal affection to interfere with the calls of her profession'.9 Although Harvey asserted his decision was based on what would benefit the child, it was also underpinned by the ancient principle that accorded the father 'prior rights to the issue of his marriage' and reinforced by Polini's intention to take the child to England after the Melbourne season ended, since 'once they left Australia, the court would have no future power to restore her to the father'.10 Polini was bitterly disappointed in the decision commenting that 'My misfortune is … I have to earn a living for my baby and myself because her father is not able to support us'.11

Polini sailed from Australia on the Tahiti on 24 April 1924 never to return. She died in the United States in 1927 from what Lang called 'creeping paralysis of the brain' as a result of losing her child12 although Radi records cancer as the cause of death.13 In her will, Polini had provided for her not-inconsiderable estate to go to her sister in England, conditional on her having the care of Patricia. The resultant litigation denied the sister custody a ruling Justice Long-Innes apparently made 'on the grounds that she had been attempting to interfere with the discretion of the Court'14 although his prime stated justification was that to allow the child to go to the sister in England would prevent the father from carrying out his parental duties.

The Polini Campaign

The Polini case galvanized women's organisations into political agitation. There were occasional dissenting female voices such as that of Adela Pankhurst Walsh, who argued against legislative amendment to infant custody laws since, in her view, the 'downfall of home life and morals in Russia … [occurred] because the communists brought in a programme of economic and social equality between men and women'.15 However, throughout the decade-long campaign to have the law amended, women's organisations across the political spectrum were generally united in the cause. Their campaign, involving petitions, letter writing, meetings and deputations to ministers in various governments attracted substantial press coverage.

A 1929 deputation from the National Council of Women representing seventy-seven women's organisations around Australia, for instance, was reported as 'a deputation of nearly 300 women' waiting 'on the Attorney-General (Mr. Boyce)' and requesting 'that the Government reintroduce the Equal Guardianship Bill' that would 'grant to mothers rights of guardianship equal to those of fathers'.16


Such press reports commonly indicated Ministers' replies, often highlighting obfuscations such as he was requesting 'information relative to the legal position',17 or vague promises such as he would 'bring the matter before the Cabinet at an early date'.18

Previous attempts to introduce Bills stalled for different reasons including a legislative deadlock over the jurisdiction clause and the sacking of the Lang government. By 1931 the women's page of The Sydney Morning Herald warned, presciently, that women would no longer 'suffer a thwarting of their wishes by a handful of politicians … without emphatic and effective protest'.19

Millicent Preston Stanley

Prominent amongst the women agitators who engaged in such emphatic protest was one whom Lang described not only as 'determined' but also as the 'skirts and brains of the Nationalists Party'.20

Millicent Preston Stanley had been, since her early adolescence, committed to 'women's issues'.21 Elected in 1925 as the Nationalists member for the Eastern Suburbs, she was the first woman member of the New South Wales parliament. She distinguished herself as an able campaigner, (she campaigned under the slogan 'horse rights for women' when a chair of Veterinary Science was established at Sydney University in preference to one in Obstetrics22), a prolific writer and a 'fine platform performer' known for her adroit responses to interjectors. She responded to one scoffer who called her a 'battle-axe' with the riposte - 'a battle-axe is a pretty useful weapon if it's kept sharp' - and her own wit, like Hamlet's, was finely honed.23

Preston Stanley's 1926 private member's Bill did not succeed before the loss of her seat in 1927 terminated her opportunities in that forum. That did not, however, put an end to her intense campaign as President and Convenor of the Movement for an Infant Guardianship Bill and organiser of 'The Emélie Polini Capital Petition' which collected 25,000 signatures.24 She continued her agitations to the point where in desperation she turned to the theatre to stage her grand finale. As she put it herself - having tried 'deputations, agitations, intimidations, organisations, having pushed the Bill in Parliament and out of Parliament and becoming thoroughly disgusted with the whole affair'25 she wrote, financed and performed in (taking the role of Miss St John) the 1932 Criterion Theatre production of Whose Child.

The play's one week run at the Criterion commenced with the customary vice-regal/A-list opening night and the usual post-performance curtain call speeches. The Sydney Morning Herald report of that event suggests that the play's power had prompted the action that brought the campaign for the amendment to the legislation to its climax and conclusion.


At the end of the performance of Miss Preston Stanley's play, "Whose Child?" at the Criterion Theatre on Saturday night, Miss Stanley announced from the stage that the Minister for Justice (Mr. Martin), who was present, had undertaken, during the evening, to introduce legislation to provide the reforms advocated in the play.

In a speech made in response to calls for the author on Saturday night. Miss Stanley read a letter which, she said, Mr. Martin had written at the theatre that night. Mr. Martin had announced that on Monday he would give instructions that provision should be made in a bill he would introduce shortly for the protection of mother's rights as advocated in the play.26

According to this account, the Minister for Justice, Mr Martin, was so moved by the play that he determined that the legislation would be drafted and introduced into the House 'very shortly'. This version of the narrative was reprieved after the successful passage of the bill through both houses two years later:

…between the third and fourth acts, [Mr Martin] sent a note behind the stage, which said, 'the play will produce a great end'.27

Martin introduced the bill into the lower house in September 1933, outlining its chequered history and putting it into context with English law and that of other states, as well as the long campaign by women of New South Wales and, moreover, he adroitly managed the various stages of its turbulent course through the Legislative Assembly. The Attorney General (Manning) similarly steered its stormy passage through the upper house.

The Guardianship of Infants Act 1934

It was eventually agreed to, with some minor amendments, in October 1934. The Guardianship of Infants Act amended three existing acts, the Infants' Custody and Settlement Act, 1899, the Marriage Act, 1899, and the Testator's Family Maintenance and Guardianship of Infants Act, 1916.

The amendments established equal guardianship rights for mother and father while positioning the child's welfare as the 'first and paramount' principle for the Court in determining custody. Throughout the bill's passage through both houses there was considerable opposition as well as support. Some of the most vociferous opposition came from men who appeared to hold somewhat misogynistic world views, as for instance, Robson's 'When a woman gets rights in these days she generally begins to exercise them' and Hemsley's 'The husband is the head of the wife, even as Christ is the head of the Church … have we Christian people any right to put such a bill as this on the statute-book, in so far as it gives absolute equality to the wife?'28

The debate frequently referenced the Polini case and cited aspects of Justice Harvey's judgement and the women's agitation. Martin himself, when the bill finally passed both houses commented:

This, I hope, brings to a conclusion a very long agitation by the women of New South Wales to have the law with regard to the guardianship of infants brought into more modern form and into conformity to a large extent with the law as we find it in England.29

However, during the debate there was no overt reference by the Minister or any other member of the house to either Millicent Preston Stanley or to the play, Whose Child.

There was no such silence in the women's celebrations. The narrative of the play's power to precipitate the legislation often featured as the central element of these accounts. At one of the many celebratory events where Martin was guest of honour, Preston Stanley's niece even read two scenes from the play by way of underlining its pivotal role in the Guardianship of Infants Act drama, Unlike Claudius, Martin became lionised and his opening-night note to Millicent Preston Stanley took on legendary status in the narrative. The Sydney Morning Herald reprieved the tale thus:


… the play, 'Whose Child' … was part of the campaign, and indeed the final factor. Mrs Vaughan said … She induced Mr Martin to attend the performance, and between the third and fourth acts, he sent a note behind the stage which said, 'the play will produce a great end'.30

The Minister's Note

There are various reported versions of Minister Martin's note and while the wording differs somewhat in the versions the narrative threads are consistent: Millicent Preston Stanley's play so powerfully argued the case for legislative reform that the Minister was prompted into action. One version of the note reads:

Dear Miss Stanley,

May I congratulate you sincerely as the author of 'Whose Child', and also you and all others associated with you in its splendid production.

It will help to achieve a great purpose. On Monday I will give instructions that the bill which I will very shortly introduce in Parliament shall provide for the mother's rights as so eloquently depicted in your play.

Sincerely yours

L.O.Martin 26.11.3231

Whatever the wording of the note may have been the reports of the play's efficacy in stimulating the Minister's decision beg a number of questions.

Consider this situation: at a vice-regal social event the Minister makes a unilateral decision of significant legislative importance without apparent formal consultation with cabinet colleagues, writes a note to this effect, sends it backstage, and allows it to be read aloud to the audience in a curtain call speech on opening night by the play's authoress (a former member of Parliament - and the only female to date elected to the lower house).

How could this be?

Counterfactual Speculations

If we accept the note was written as reported on the night, some explanation might be found in the composition of the audience. Like Hamlet's audience, this was a Vice-regal affair that included Sir Philip Woolcott Game and Lady Game, the Prime Minister the Hon. J A Lyons, the Premier, the Hon. B. S. B. Stevens, the Lord Mayor, the Hon. S. Walker, M.L.C. and others. Millicent Preston Stanley did apparently receive written accolades from other members of the audience. Prime Minister Lyons, for instance, reportedly wrote the play would achieve its purpose, while the Honourable Speaker of the Legislative Assembly reportedly wrote of its 'tremendous value in the sacred cause of motherhood'. However, it must be noted these are merely expressions of admiration whereas Martin's note apparently announces a Ministerial decision.

It is pertinent then to ask: did an ad hoc cabinet meeting take place in the Gentlemen's lounge in the interval after the third act? Was pressure brought to bear on the newly appointed Premier by the Governor General who had sacked the Lang government or by the Prime Minister and founder of the United Australia Party? Or was there a different kind of kitchen cabinet in the Ladies' Lounge? Did Enid Lyons, mother of ten in 1932, prompt her husband to pressure the new state government? Or was it Mrs Martin, playing a Lady Macbeth-like role, who pressured her ambitious husband to capitalise on the situation?

An even more intriguing scenario arises if we begin to question the provenance of the note itself. Was it, in fact, written on the night, between the third and fourth acts, as reported?

This requires an exploration of the kind of relationship that might have existed between Martin and Preston Stanley. Martin was ambitious and Preston Stanley was an experienced campaigner. Arguably both, as Nationalists turned United Australia Party members, moved in similar political and social circles. Did they meet formally or informally beforehand? What inducements did Preston Stanley offer Martin to attend the performance?

Was the note scripted prior to the first-night performance? If so, did Millicent Preston Stanley have any input into the wording of the note perhaps inserting lines as Hamlet did into his mousetrap play. Did she, like Hamlet arrange for the note's insertion into the curtain call speeches at the end of the performance?

Some press items in the week prior to the performance give some credence to such counterfactual speculations. One report suggests that the preparation of this legislation was already in hand prior to the opening night:

A deputation representing the United Women's Association … sought the Government's attitude on fathers and mothers having equal rights of guardianship ...

Mr Martin, in reply, said that he was preparing a measure regarding the guardianship of children.32

Similarly, an item two days prior to opening night in which Martin acknowledges Preston Stanley's influence suggests not only the decision already taken to introduce the legislation but hints at some recent meeting or communication with Preston Stanley.

The Minister for Justice (Mr Martin) said yesterday that he proposed to prepare a bill to rectify some of the anomalies concerning infant guardianship.

Mr Martin said that he had taken this step in consequence of representations which had been made to him by Miss Preston Stanley.33

In addition, the notice about the play's limited run - 'It is now announced that 'Whose Child' will be definitely limited to one week's run'34 - suggests that Preston Stanley might have achieved her stated purpose prior to opening night and could therefore afford to curtail the extent of the production run and hence relieve herself of he additional financial burden now that her goal was assured. Furthermore the omission of any reference to the first night narrative in the debate in the House after the Bill's introduction also prompts me to doubt the story of Martin's spontaneous note-writing and decision making.


I have no hard evidence for any of these speculations, but absence of evidence is not evidence of absence.

Nevertheless, it is apposite to pose the question: did the performance of Millicent Preston Stanley's play, Whose Child based on the Polini case and her campaign for legislative amendment, prompt the Guardianship of Infants Act 1934?

My current contention is that the play's performance may have been a prompt, not in the sense of provoking the Minister to spontaneous action, but rather a prompt in the theatrical sense of the word - that is, a cue to a pre-rehearsed script.




1 Papers of Millicent Preston Stanley National Library of Australia MS 9062 Box 1 Folder 4
2 Barry, Elaine 'Women, Law and Literature: Representations of Women and the Law in American and Australian Fiction' in The Happy Couple: Law and Literature ed Turner, J. Neville, Williams, Pamela Sydney: The Federation Press 1994 p.112
3 Preston Stanley Papers Box 1 Folder 1
4 Sydney Morning Herald Monday 28 November 1932
5 Griffiths, Gail 'The Feminist Club of NSW 1914-1970: A History of Feminist Politics in Decline' Hecate Vol 14 No 1 1988p.60
6 Henry Arthur Jones The Lie Dedication to Miss Margaret Illington Accessed at
7 The Register Saturday 14October 1922
8 Colin James 'The Father Factor in Australian Child Custody Laws in the 20th Century' Legal History Vol 10 2006 p.221
9 Radi, Heather. 'Whose Child' in Mackinolty, Judy and Radi, Heather. Eds. In Pursuit of Justice: Australian Women and the Law 1788-1979 Sydney: Hale & Iremonger 1979p.127
10 Lang J D I Remember Sydney: Invincible Press 1956 p.366
11 The Advertiser Saturday 12 April 1924
12 Lang p268
13 Heather Radi, 'Polini, Emélie Adeline (1881-1927)', Australian Dictionary of Biography, Volume 11, Melbourne University Press, 1988, pp 252-253 accessed at on 31 July 2010
14 Lang p.268
15 Ibid Wednesday 23 November 1932
16 Ibid Friday 16 August 1929
17 Ibid Wednesday16 April 1924
18 Ibid Tuesday 15 April 1924
19 Ibid Friday 22 Aug 1930
20 Lang p.268, 267
21 Heather Radi, 'Preston Stanley, Millicent Fanny (1883 - 1955)', Australian Dictionary of Biography, Volume 11, Melbourne University Press, 1988, pp 285-286 accessed at on 31 July 2010
22 Griffiths, p.58
23 Radi 'Preston Stanley'
24 Preston Stanley Papers Box 1 Folder 1
25 Sydney Morning Herald Thursday 17 May 1934
26 Ibid Monday 28 November 1932
27 Ibid Thursday 15 November 1934
28 Hansard NSW Parliamentary Debates 1934 p.703
29 Loc cit p.3332
30 Sydney Morning Herald Thursday 15 November 1934
31 Ibid Thursday 17 May 1934
32 Ibid Saturday 19 November 1932
33 Ibid Thursday 24 November 1932
34 Ibid Saturday 19 November 1932