© 2005 Lisa Young and Stephen Shaw
Reproduced under the Fair Use exception of 17 USC § 107 for noncommercial, nonprofit, and educational use.
| EJF Home | Find Help | Join the EJF | Comments? | Get EJF newsletter |
| Families And Marriage Book | Abstract | Family site map | Family index |
| Chapter 7 Paternity Fraud Epidemic |
| Next Agency Culpable In Child Support Scam by Wendy McElroy |
| Back Man Forced To Pay Child Support To Biological Father Of His Wife's Child |
The legislative backdrop
The trial judge's decision
The Court of Appeal decision
The English position: P v B (paternity: damages for deceit)
There is a long legal tradition of presuming paternity regardless of any biological evidence of the fact. Of course, the common law presumption as to paternity is only the flip side of the legitimacy presumption, and it has been the latter that, in the past, attracted greater legal notice. The presumption of legitimacy arising from marriage brought with it considerable advantage for the child concerned and certainty for the father, at least in regard to the disposition of his assets. With the modern erosion of the significance of legitimacy, and the redefinition, and greater enforcement, of obligations of parents to support their children, it is now paternity, rather than legitimacy, which is of paramount legal significance. One complex legal question which has arisen in recent years in relation to paternity is whether a man can use the tort of deceit to sue the mother of a child who has misled him as to paternity, where paternity is later disestablished.
This was the exact question in the recent decision of the Court of Appeal of the Supreme Court of Victoria, Magill v Magill. Mens' rights groups claimed a great victory when Mr. Magill was initially awarded $70,000 AU in tortious damages against his estranged wife by a Victorian County Court judge in 2002. Those same groups, and sympathetic journalists, have expressed horror at the recent decision of the Victorian Supreme Court overturning that award, despite the Court expressly stating that it was a technical decision turning on the way the case was argued rather than a reflection of any general reluctance to award damages in such cases. Indeed, the Court was clear in saying that an action in deceit was not inappropriate in this type of situation.
In this casenote we consider the legislative framework in which decisions such as Magill sit, outline the Magill litigation and look at the English approach to this question. We then discuss some of the key issues raised by Magill and conclude it is not appropriate in this and like instances to adopt a tortious remedy designed to address dishonesty in commercial transactions.
Although there were no determinative legislative provisions in the Magill case, it is important to understand where the decision sits in relation to any relevant legislative provisions governing family relations in Australia. Mr. Magill sought damages both for the emotional distress caused to him by the actions of Mrs. Magill and also compensation for the money expended by him on the support of Mrs. Magill and the two children in question during the time that they lived together.
This action did not seek the recovery of any child support paid after the parties separated. Recovery of child support payments where paternity is later disestablished is covered by s 143 of the Child Support (Assessment) Act 1989 ("the CSAA"). In G and N the then Chief Federal Magistrate held this provision "provides a code for what is to happen in cases where a liable person turns out not to be the biological parent, and it is quite clear" a Court "can in its discretion order repayment to the person having made payments pursuant to an assessment." Notably recovery of child support under s 143 is not automatic, rather the "court may make such orders as it considers just and equitable for the purpose of adjusting or giving effect to the rights of the parties and the child concerned": s143(3).
There have been a number of decisions where repayment of child support has been ordered. Interestingly, the duplicity of the mother in having kept to herself the possibility that the putative father may not, in fact, be the father, seems to have weighed heavily in the exercise of that discretion on one occasion, though the sum sought to be recovered was quite modest in that case. Relying too heavily on this factor would seem problematic as by their very nature these cases are most likely to arise where there has been some level of deception. In another case, the Magistrate quite clearly considered the financial impact on the mother and child of ordering repayment of child support and took account in that context of a property settlement between the parties.
Whilst the Family Law Act 1975 ("the FLA") ended criminal conversation, damages for adultery and enticement of a party to marriage, s 119 of that Act provides that actions in tort and contract can still be brought between parties to a marriage. Perhaps the most obvious examples of the continued use of tort claims between married couples have been the various claims for assault and battery [domestic violence] heard at the same time as other matters are being resolved in the family courts.
The parties were married in April, 1998. Mrs. Magill bore three children, Arlon, Heath, and Bonnie, over the following three years. After each child was born Mrs. Magill filled out the requisite birth registration application naming herself as the mother of each child and naming Mr. Magill as the father. Mr. Magill in turn signed the forms in the belief that he was the biological parent of each child. The births were duly registered and each child took the surname of Magill.
In November 1992, when the youngest child Bonnie was one, the couple separated. Later that month Mrs. Magill lodged an application under the CSAA and Mr. Magill commenced making regular child support payments. With the exception of a period of some 12 to 14 months in 1997, Mr. Magill made payments in support of all three children up until 1999.
In 1995 Mrs. Magill was hospitalized for a nervous condition and Mr. Magill cared for the children. While the children were in his care, Mr. Magill discovered a dairy in which Mrs. Magill had recorded her doubts about the paternity of one of the children and her efforts to have the man she suspected was the father, a family friend, own up. When confronted, Mrs. Magill confessed to her husband that she had some doubts as the middle child Heath's paternity. She had an affair that commenced in 1989 and continued past the end of the marriage until 1995. Mrs. Magill acknowledged that she had unprotected sex with her lover on a regular basis while married to and living with Mr. Magill. She claimed that she initially thought that Mr. Magill was Heath's biological father, but that in 1993 she saw a picture of her lover as a child, and the strong resemblance to Heath raised a doubt in her mind.
Despite these revelations, Mr. Magill continued to make child support payments for all three children. In 1999 Mrs. Magill consented to DNA testing to resolve doubts as to Heath's paternity. The tests showed that neither Heath nor Bonnie were Mr. Magill's offspring. In January 2001 Mr. Magill commenced an action in the tort of deceit against Mrs. Magill and the matter was heard before a single judge of the County Court of Victoria. Hanlon J gave his reserved oral reasons for decision on 22 November 2002, three days after the hearing ended.
Hanlon J found for Mr. Magill and awarded him $70,000 AU in damages, comprising:
I. $30,000 AU for an unspecified portion of a psychiatric disability that Mr. Magill had developed;
II. $10,000 AU for time he took off work after the birth of each child;
III. $25,000 AU for expenses (other than child support payments) incurred for the two children over the years before paternity was resolved, and;
IV. $5,000 AU for future loss of earnings.
Mr. Magill alleged, in his Statement of Claim, that at some time before the birth of both Heath and Bonnie, his wife had expressed to him that she was pregnant and that he was the father of the unborn child. He pleaded that the representations were made with the knowledge that they were untrue or with the requisite degree of recklessness as to their truth so as to be considered fraudulent. He further pleaded that he relied on the representations and thereafter always believed himself to be the two children's father and did not question his liability to pay child support.
As interlocutory proceedings progressed, Mr. Magill filed an Amended Statement of Claim. In that document he pleaded that the representations of his wife on which he relied were both statements she made to him and the completion by her of birth registration forms. In each form Mrs. Magill named Mr. Magill as the father of the newborn child, and each time she gave him the form to sign. Mr. Magill also claimed that applying for and accepting child support after the separation was in itself a representation.
By the second day of the trial Hanlon J made it clear that he considered the registration forms, and Mrs. Magill's treatment of them, to be plain assertions by her to the effect that Mr. Magill was the father of both children and he confirmed this in his final decision. His Honour went on to find that Mrs. Magill's evidence that she believed both children to be Mr. Magill's despite the fact that she was having an affair was unreliable. Hanlon J considered Mrs. Magill's representations as to paternity were, at the very least, reckless and he found she intended her husband to rely upon them. Finally, his Honour found that Mr. Magill did rely upon his wife's representations in consenting to the children taking the name Magill. Thus, he felt the tort was made out.
It appears that his Honour did not address the question of whether Mrs. Magill's ongoing conduct in continuing to allow her husband to believe that he had fathered the children during the marriage and through the subsequent years of maintenance payments consisted of either new or ongoing representations. Nor did he address the question of whether Mrs. Magill's application for child support constituted a fresh fraudulent representation.
Mrs. Magill appealed to the Supreme Court of Victoria. Her appeal was funded, in part, by the [taxpayer funded] Victorian Women's Legal Service. Mr. Magill received some financial support through an internet appeal for funds.
Ormiston, Callaway and Eames, JJA handed down their decision on 17 March 2005. Ormiston, JA, who substantially agreed with Eames, JA, began his short reasons by highlighting that the decision did not create any precedents as it was "technical and dependent on fine matters of procedure." He also observed (somewhat ironically given the overall tenor of this decision) that fraud is a serious matter which called for caution in findings.
Callaway JA allowed the appeal on the basis that:
"there was no evidence on which the learned judge could find that [Mrs. Magill] intended [Mr. Magill] to rely on the forms, except for the purpose of signing them and agreeing that the children should be registered with the family name of Magill, or that he did rely on them for any other purpose."
His Honour clarified his findings by noting that, although the original matter was not pleaded so as to restrict the alleged representations to the birth registration documents, he considered those documents to be the only evidence that the judge in the first instance tested against the elements of deceit. He also made it clear that had Mr. Magill's solicitor filed and served a notice of contention in regard to the original findings the appeal may have had a different outcome.
Eames JA, in the leading judgment, revisited Mr. Magill's Amended Statement of Claim in some detail. In relation to both children, this pleaded that the "representations" Mr. Magill relied upon were partly written, partly oral, and partly implied. The birth registration forms, which constituted the written representations, were in no way alleged to be the whole of the representation. In particular, and amongst various other claims, there was reference to Mrs. Magill's application for child support as an implied representation as to paternity. However, as His Honour went on to note, it was not clear precisely which representations were relied upon by the trial Judge in finding deceit made out.
Not surprisingly, during the hearing of the appeal, counsel for Mr. Magill contended it was clear the matter had been decided with reference to a far wider range of evidence than merely the birth registration forms. In particular, counsel referred to the final submissions where the registration documents where listed as only one of eight separate pieces of evidence which proved the representations had been made. Eames JA rejected this argument. He held the trial Judge found only the registration forms to have been representations and that the further evidence was used to show that the representations were fraudulent rather than amounting to separate or even ongoing representations as to paternity.
At this point, Eames JA paused to discuss the important question of whether an action in deceit was a reasonable vehicle for dealing with alleged paternity fraud. Noting that there was no statutory bar to such an action, he said
"Whilst there may be good reason to discourage traumatic litigation such as has arisen in this case it is not the function of this Court to apply social considerations so as to deny a party a remedy which is otherwise open to him or her."
Having made clear his view that the court should not intervene on public policy grounds, his Honour moved to the question of what Mr. Magill had relied upon the forms to do. In the latter context he noted Mr. Magill's evidence was that, in accepting the children as his own, he had relied on his belief he was the children's father, rather than on the registration forms. For that reason his Honour found that Mr. Magill's alleged damage was not linked to any reliance on the forms. His Honour felt that at most Mr. Magill had relied on the forms with respect to the two children bearing his name. He therefore did not consider that either the claimed financial expenditure or the psychiatric illness could be linked to the representations made by Mrs. Magill in the birth registration forms.
Thus, in the view of Eames JA, the tort was not made out. His Honour went on to say that even if Mr. Magill had established reliance, "the claim would founder on the rocks of causation." However, his Honour made it abundantly clear that had the claim been made out on grounds more general than merely the birth registration forms (and had Mr. Magill filed a notice of contention) the outcome may well have been different.
His Honour then proceeded to look more closely at causation, remoteness, and the measure of damages. Mrs. Magill had argued that any loss suffered by her ex-husband could not be described as flowing from any representations, but rather from the disclosure of her infidelity and the truth about the two children's paternity. His Honour responded that the deceit alleged need not be the sole cause of the damage and an assessment could be made as to what part of the damage flowed from the representation.
Eames JA also considered the trial Judge's damages award, after first noting that adultery itself did not sound in damages. His Honour accepted the trial Judge's first instance finding that:
"the alleged fraudulent misrepresentation of the paternity of the children was a noticeable factor in [Mr. Magill's] psychiatric condition, but certainly the initial marriage break-up has probably always been slightly the major factor leading to the current situation."
Nor did his Honour take issue with the trial judge's view that the damages awarded for expenses incurred in relation to the children was not in effect a refund of child support but rather related to additional financial support that Mr. Magill had provided. It appears that no submissions were made at trial as to any offsetting of damages against any benefit Mr. Magill may have derived from his wife or the parenting of the two children. However, Eames JA pointed to Cattenach v Melchior and noted that such submissions may not have found favour had they indeed been made.
So in summary, although the appeal was successful on technical grounds, there was no statement in favour of using public policy to limit the application of deceit as a remedy in cases such as Magill. Indeed, the resort to the pretence that public policy should play no part in their decision making suggests there was no significant discomfit for the judges in making this decision.
The issue of deceit as a remedy for fraudulent misrepresentations made in personal relationships has been raised in varying factual situations in other jurisdictions. To date decisions have favoured allowing deceit actions between cohabiting couples.
The only reported decision on the matter in the UK is P v B. Stanley Burnton J was asked to decide, as a preliminary issue, whether the tort of deceit applies as between cohabiting couples. In this instance the claimant belatedly discovered he was not the father of the child of the woman with whom he had been cohabiting at the time of the child's conception and birth. Relying on the tort of deceit, he sought £90,000 in damages for the past support of the child and mother and general damages for "indignity, mental suffering/distress, humiliation." Finding for the claimant on this point, Stanley Burnton J held that whilst such proceedings were not appropriate as a mechanism for disestablishing paternity, there was no good legal or policy reason why actions for damages in deceit should not apply to cohabiting couples. Indeed, "[t]he law should encourage honesty between cohabiting couples rather than condone dishonesty." Counsel for the mother had included in his policy submissions against liability, the inevitable floodgates claim. A little surprisingly, Stanley Burnton J said this argument "is not one which should prevent a remedy from being available in cases where it is needed."
Stanley Burnton J did, however, have sympathy for two arguments advanced by counsel for the mother. The first was that any damages awarded in such a case would not factor in the benefits obtained by the claimant from the companionship of the child and its mother and the second was that it would be "distasteful and morally offensive to regard the sums spent on the maintenance of the woman and the child as a loss of the entire monetary value of those sums." However, it was held the solution was not to rule out deceit as a remedy in such cases, but rather to consider these matters when determining the "nature of the intention required to establish liability for deceit and by scrutiny of the damages recoverable in such a case." This case did not proceed to a trial of those issues, however.
In reaching his decision, Stanley Burnton J referred to Canadian and US authority. Whilst the latter were not held to be of any particular assistance, his Honour noted a number of recent US decisions affirming the availability of an action in deceit between husband and wife. Two Canadian authorities were considered in more detail, on the basis that they showed the inequity that would arise were this tort not to be available to cohabiting couples. Both cases involved married men fraudulently misrepresenting that they were single to induce women into going through a marriage ceremony with them.
Cases from around the common law world show it is difficult to argue that the tort of deceit does not, as a matter of law, apply to misrepresentations about paternity. It is fairly easy to construct scenarios in which the elements of that tort can be made out. However, given the special treatment families often receive under the law, the question here is whether the application of the law of deceit should be modified as between spouses in these, or indeed other, circumstances. Not only is there is no good reason not to consider this question from a public policy point of view, the degree of media attention Magill received evidences the public interest in addressing this issue.
Let us then consider some of the possible consequences if the law were left as it presently stands. Stanley Burnton J, in P v B, said that it was desirable that spouses be encouraged to tell the truth and he presumably felt the operation of deceit in this sphere would help achieve this. Many children are not biologically related to their mothers' spouses. There will be a myriad of situations that can have led to such an outcome, ranging from rape, to one night stands, to long-term relationships with lovers. In all such situations there is now effectively a legal obligation for a woman to advise her spouse of the possibility that he is not the biological parent of the child in question. But the mother will not necessarily know the truth as to paternity (indeed this must very often be the case as the spouse would invariably know if there was no possibility of him being the biological father). Should the mother tell her spouse of this possibility without knowing the truth, given the devastating effects this might have on their relationship and on any children they have, even if the father turns out to be the parent? Or should she steal some of her spouse's DNA, have the test, and then tell him if necessary? Perhaps DNA tests could be made legally compulsory at the time of birth. It is hard to see how any of these options would promote the welfare of the families involved.
Stanley Burnton J went on to say that he did not think
"that liability for deceit is an undesirable interference by the law in the domestic relations of a man and a woman. Actions for deceit between couples will in practice be commenced only when their relationship has broken down. An action for deceit will not cause the breakdown of the relationship: more likely the breakdown in the relationship will be the consequence of the fraud."
It is hard to reconcile this with his view that deceit should be an aid to truthfulness between spouses. If liability in deceit provides an incentive to mothers to disclose infidelity it thereby interferes in the domestic relationship of the couple by jeopardizing that very relationship.
Further, if spouses are to be generally liable in relation to lies surrounding conception, what of the cases where a parent (male or female, though more easily the latter) has lied about the use of contraception? Discussion of this topic has generally centred on whether child support obligations can be avoided on this basis. Given that they cannot, imagine the loss claimable by a parent who has relied on a lie as to contraception in engaging in intercourse and now has a child to support until they turn 18. One might argue that this parent could have taken their own precautions, and probably should have if they wanted to ensure they were not to become a parent. However, precisely the same argument applies in the Magill case any parent who wants to ensure they do not support someone else's child could have an early DNA test. [And the EJF would advise that any man facing child support have a DNA paternity test prior to the assumption of that responsibility.]
Another issue is whether the present legal position is fair as between spouses. If wives are to be held accountable to their partners for their lies as to fidelity and paternity, why should husbands not be held to the same standards? Consider the male spouse who fathers a child to a woman other than his spouse. Even if a DNA test were carried out for that child, the female spouse would not necessarily know about it, let alone be able to force such a test. (Perhaps our compulsory DNA test at birth could incorporate mandatory notice to any spouse of the father!). This situation is unlike that of the Mr. Magills of this world, who both know of the child and can check the paternity of their children. And were a female spouse to find out her male partner was the father of someone else's child, would she be able to sue him for deceit, based on any loss she might have suffered as a result of this fact (for example, where he has provided support to the other child, which money could have instead benefited the female spouse and their children)? Perhaps the question has not arisen precisely because of the difficulties in establishing deceit in such a case. If the father mentions nothing to his wife of this other child, what representations has he made to her? How would this spouse both act to her detriment (for example by staying with the father) and suffer loss (given that she may well be worse off if she left)? And yet this case and Magill both involve lies about fidelity and paternity which have financial and emotional consequences for the families involved.
Moreover, although the child support legislation permits recovery of child support payments where paternity is later disestablished, parents who fail to receive appropriate levels of child support after separation due to the lies of the paying parents could not hope to be compensated for their losses even could they later prove the truth. Deceit would be unlikely to help them.
Again, how would a parent receiving child support (or not as the case may be) be able to show they had acted to their financial detriment based on the lies of the paying parents? Showing they had struggled would not suffice. When child maintenance was handled through the family courts, there was even a reluctance to collect old arrears on the basis that the needs of the child had since been met. Whilst the Child Support Agency now attempts to collect all arrears, however old, when a review of an assessment is sought, parents need to show special reasons why any change to an assessment should be backdated. Proof of deceit might amount to a special case but in assessing what change if any ought to be made to a past assessment, the decision maker would have to go through the three step process set out in the CSAA for changing an assessment of child support and factor in the overall financial situation of all concerned including the capacity of the payer to meet any retrospective change to child support. This puts payee parents, most of whom are women, at a severe legal disadvantage as compared to fathers challenging paternity, whether via deceit or s 143 of the CSAA. One wonders why a lie like that of Mrs. Magill, which may well have been intended to keep the family together, should be granted a legal advantage over a lie which might be designed to deprive a mother and child(ren) of child support to which they would otherwise have been entitled.
This leads us to the next question, which is why deceit should not apply to all lies spouses tell, not just those that involve the birth of a child. For example, many spouses would say that were they told of any infidelity by their spouse, they would end the relationship. No doubt partly because of this, many spouses lie about fidelity, or lie by omission. One can easily imagine a circumstance in which a parent could argue a compensable loss arising out of such a lie (including suffering emotionally from learning of the infidelity). Indeed, given decisions like Magill, why are we not compensating would-be-mothers who have been lied to about their spouses' intentions as to fatherhood and thereby deprived of having children? Take Mrs. Unlucky, a traditional woman with no shortage of suitors, who married in her early thirties. She made it very clear before her marriage that a key priority for her was having children and her husband-to-be said he shared this dream. After many years of trying Mrs. Unlucky discovers that her spouse had a vasectomy before she even met him. The couple eventually separate, but the alarm on Mrs. Unlucky's biological clock is sounding and her age is no advantage to repartnering. What loss has Mrs. Unlucky suffered in missing out on motherhood?
The idea that deceit might be used more widely was obviously on the mind of Stanley Burnton J, when he said:
"I suspect that the matrimonial legislation assumes that most spouses do not deceive each other in order to obtain the other's property; and that such fraud is in fact the exception and will not prove the rule. Be that as it may, the floodgates argument is not one which should prevent a remedy from being available in cases where it is needed."
Whilst it has been suggested that the floodgates will not be opened in any event due to the difficulties inherent in establishing deceit, there is some irony in making this comment in a tortious context. For example, claims for both nervous shock and pure economic loss have seen their naturally broad applications constrained based in part on the fear of opening the litigation floodgates. However, we would argue that the concern about an action in deceit being generally available in this domestic context is not how many such cases will arise, but rather whether these are cases which ought to be resolved using rules designed primarily for commercial situations. Stanley Burnton J says a remedy is needed in this context. Even if that is true, the question is what remedy?
One very good reason why family laws are specially crafted and dispensed in specialist courts is that many cases involve children. Decisions such as Magill (which will always involve children) have the potential to cause even further harm to the children involved. A damages award in tort does not factor in the impact on the child of requiring the mother to make such a payment. We have no doubt Mr. Magill suffered great emotional distress. But we suspect it wasn't all that easy for the children either. Naturally, the decision does not tell us much of the mother's financial situation, but an outcome requiring a mother to pay costs together with a compensation award could force that parent to sell their home. The children moreover see the person they no doubt psychologically consider to be their father in essence punishing their mother for her deception in a way that could seriously adversely affect them and which at its core must make them question their relationship with the man they see as their father.
If Liam Magill was an illegal immigrant, an axe murderer or a drug smuggler, he would have rights, but because he is a father, he is fair game for an out-of-control Child Support Agency.
A criminal has the right to be legally represented, but not this man. Liam's past experiences with the CSA have left him with a permanent psychiatric disability which has deprived him of decades of productive life, yet he remains at their mercy. Summoned to a conference with the Agency at the recent bidding of his former wife, Liam has been denied the opportunity to be represented or even supported during this impending harrowing ordeal. Even his Power of Attorney is being instructed to stay away and refrain from attending with him. The CSA is well aware of the Magill saga as it has unfolded over the years, but the CSA hides behind legal advice that Liam must face his persecutors alone.
We treat pedophiles more humanely.
Liam Magill made legal history in 2002 when he sued his former wife Meredith Magill for the damage caused when he discovered that two out three of his children were fathered by a trusted family friend. The Victorian County Court heard evidence from Liam Magill's psychiatrist that the burden of paying Child Support for three children had caused depression, anxiety and an inability to cope with the pressures of everyday life. Judge John Hanlon accepted Dr. Chong's evidence and awarded damages against Liam's former wife, Meredith Magill. The Victoria Court of Appeal later overturned that judgment; however the High Court of Australia is now set to have the final word.
In October 2004, Liam Magill's former employer determined that he would never be able to return to the workforce and paid him a small sum intended to top up his disability pension until retirement age. Liam's former wife Meredith Magill is now seeking a share of the compensation for the damage that she and the CSA have caused. As Liam Magill's final entitlement was paid in a lump sum, it has been deemed as income in a single financial year, putting Liam's above average weekly earnings for the first time in his life.
Enduring Power of Attorney for Liam Magill
Telephone: 61- 416 031145
| EJF Home | Find Help | Join the EJF | Comments? | Get EJF newsletter |
| Families And Marriage Book | Abstract | Family site map | Family index |
| Chapter 7 Paternity Fraud Epidemic |
| Next Agency Culpable In Child Support Scam by Wendy McElroy |
| Back Man Forced To Pay Child Support To Biological Father Of His Wife's Child |
Added February 1, 2006
Last modified 4/11/15