Mothers must tell the truth

The Australian, Australia's national newspaper, March 23, 2005

IT has been called sex, lies and DNA. That complex web snared Tony Abbott when, on Monday, he revealed that the son he was reunited with just a few months ago was not his son. Abbott's anguish, his shock and disappointment, as he faced cameras was only too real. Recall the beaming Abbott when just a month ago he talked about "my boy" Daniel O'Connor. It is impossible to imagine the even greater torment that O'Connor is now confronting.

While the Abbott saga has mesmerised the nation, other cases slide under the radar. This is a web that entraps more men and children than we may care to believe. And when the tangled skein involves deliberate deceit, the devastation is often worse.

Consider the case of Liam Magill. When his wife Meredith gave birth to two babies, each born with blue eyes and blond hair, Liam assumed they were his. He had no reason to think otherwise. He signed the birth certificates as any new father does. He cared for the children, loved them, cherished them as most fathers do. But Liam's world fell apart when he discovered neither child was his.

Caught between a rock and a hard place, Liam, who still loves the children, wanted Meredith to be held accountable for years of dreadful deception. He went to court seeking damages for deceit – recompense for expenses he incurred and for the pain and suffering he endured. But last Thursday, the Victorian Court of Appeal tossed out his claim, overturning an earlier decision that awarded him $70,000 for paternity fraud.

Emotionally shattered, Liam will say only that March 17, 2005, should be remembered as a day of infamy for Australia's legal system. And perhaps it should. Before dismissing Liam as a disgruntled litigant, these are the undisputed facts.

Liam and Meredith married on April 9, 1988. The first of three children was born in April 1989. From September 1989 until early 1995, Meredith had regular unprotected sex with a secret lover. The Court of Appeal agreed that Meredith was "having more frequent sex with her lover than . . . her husband". On July 30, 1990, a son, Heath, was born. On November 27, 1991, a daughter, Bonnie, was born. Meredith and Liam separated in November 1992 and Liam made child support payments for more than five years. In 1995 Meredith admitted to Liam her concerns over paternity. In 1999 they agreed to DNA tests and in April 2000 Liam learned the sad truth. Heath and Bonnie were not his children.

Then last week Liam learned that the law will not hold Meredith accountable for her deceit. Careful to say that the law of deceit may apply to other cases of paternity fraud, the judges shied away from finding it here. They said Liam was not induced to act on the deceit. It is a surprising decision because it is hard to imagine a clearer case of a man suffering loss through paternity deceit.

Feminists were delighted with the result. On ABC Radio's PM program, Joanna Fletcher from the Victorian Women's Legal Service described the litigation as an "ugly affair" that should never have proceeded. "It's bad for children," she said. "You really have to ask how damaging it must be for the children of this marriage to have the man that they've always known as their father suing their [mother] for an injury and for return of money spent on them . . . really saying to them that he got no benefit or joy out of his relationship with them."

She would say that. The VWLS funded a large chunk of this long legal battle. While Liam sold his house to pay for the litigation, federal and Victorian taxpayers funded Meredith. (And when that dried up, Clayton Utz took up the case on a pro bono basis.)

The VWLS has argued that Meredith's defence deserved to be funded by the public purse. But what precisely is the public interest in defending paternity fraud? That women should be left alone to go about their deceit without penalty, striving for a world without consequences? If there is a public interest, it is one that says men have the right not to be duped into playing dad.

Feminists who argue for special pleading for women, who fight to lower the bar of responsibility for women, do nothing for women's equality. Indeed, if feminism is reduced to this, expect many to turn away. Every dollar spent defending deceit is a dollar not available for a more worthy case.

More important, how does defending deceit protect the interests of children? By denying men the right to know and by not penalising the mother for deceit, we end up giving women the right to deceive. That cannot be good for children.

Feminists seem to draw upon the interests of children only when it suits them. Concerns about children were thin on the ground when Kerry Melchior went to the High Court arguing that her healthy baby, born after a botched sterilisation, was unwanted and a financial burden. She said that although she loved her child, she should not have to pay for its upkeep. The court agreed and awarded Melchior damages.

Clearly that case encourages parents to come to court to belittle the birth and life of their child to boost their damages claim.

To her credit, feminist Eva Cox joined ethicists and psychologists who were concerned that this case labels a child as a burden. But for others such as University of Sydney law professor Regina Graycar, this was a woman correcting an injustice. Yet when Liam Magill claims damages for deceit, we are told he is seeking revenge. Paternity fraud spawns many victims. A father loses a child he thought was his. Children suffer as the family they once knew collapses around them.

And women lose out, too. Cheryl King, Liam's second wife, has had to pick up the pieces – emotional and financial – of the deceit. In pure numbers, the extent of paternity fraud is staggering. Firms that carry out DNA tests say that 20 to 30 per cent of DNA tests done for men who have doubts about paternity reveal that they are not the biological father.

With a time bomb waiting to explode, we need clear messages to remind women that deceiving men into fatherhood is unacceptable. Last week federal Attorney-General Philip Ruddock introduced legislation making it easier for men who discover they are not the father of a child to recover child maintenance payments and property transferred in family law settlements.

The next step is convincing courts to hold women accountable for deceit over paternity.