Paternity fraud 'dad' loses appeal

The Age, Australia, November 9, 2006

A man who sued his former wife after paying child support for two children fathered by his wife's lover today lost his appeal to the High Court.

The judges unanimously ruled that the case for paternity fraud brought by Liam Neale Magill failed.

Three judges held that no action for deceit could lie in representations about paternity made between spouses.

Three other judges held that there could be circumstances in which such an action might succeed but they were exceptional and did not cover Mr Magill's situation.

However, the court also rejected an argument put by Mr Magill's former wife Meredith that the Family Law Act ruled out any action for deceit.

The court was told the Magills married in April 1988 and separated in November 1992, divorcing in 1998.

They had two sons and a daughter between April 1989 and November 1991 with Mr Magill naming himself as father on their birth registration forms.

After separation Mr Magill paid child support for all three children.

But in 1995, Mr Magill learned that Ms Magill at least suspected that her husband was not the father of her second son and in April 2000, DNA testing established that Mr Magill had fathered neither this boy nor the daughter.

She subsequently acknowledged a sexual relationship with another man which started after the birth of her first child.

Mr Magill's child support payments were adjusted to allow for past overpayments and an extinguishment of arrears.

Mr Magill sued, launching a case for deceit in the Victorian County Court, claiming damages for personal injury in the form of anxiety and depression resulting from fraudulent misrepresentations.

He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father, plus exemplary damages.

He was awarded $70,000 from his ex-wife, including $30,000 for general pain and suffering, $35,000 for past economic loss and $5,000 for future economic loss.

The County Court found Ms Magill's presentation of the birth registration forms to Mr Magill constituted the deceitful representation by Ms Magill that he was the father.

But the Victorian Court of Appeal reversed that decision on grounds that Mr Magill had failed to establish the essential elements of the offence of deceit.

He then appealed to the High Court, which delivered its decision today.

Outside the High Court in Melbourne, Mr Magill showed little emotion.

He thanked his lawyers and the public for their support during his legal battle, which began more than seven years ago.

Mr Magill said his partner, Cheryl King, had made a brave stand by representing him in a second case against the Child Support Agency, which he lost last week in the Victorian County Court.

"She (Ms King) had the guts to stand up on her own with no legal representation against the might of the Child Support Agency and the government and whatever legal weight that they had and I thank her for that,'' Mr Magill said.

Mr Magill's lawyer Vivien Mavropoulos said the case had highlighted fundamental social issues in Australia.

"They are the importance of truth in relationships and marriage, a child's identity and heritage, parentage and the responsibilities that go with that and a person's blood line, health issues and medical history,'' Ms Mavropoulos said.

She urged courts, parliament and society to address the issues raised in Mr Magill's case "in a manner which is fair and just to all parties''.

AAP