In a 94-page judgment yesterday, the High Court decided the case of Magill. Like most High Court cases, it was decided on extremely technical issues but, despite that, will be seen as something else — the denial of the rights of fathers.

Mr Magill sued his wife in the tort of deceit (a tort is a civil wrong like negligence or defamation). During a brief marriage of four years (1998-1992), there were three children. The wife asserted that Mr Magill was the father when in fact the second and third children were those of another man and were conceived during the marriage.

Mrs Magill obtained an order for child support for the three children which was paid until 1999. In 2000, DNA testing established paternity.

It is important to understand that section 143 the Child Support Assessment Act provides for this sort of case. Mr Magill was entitled to an adjustment for the overpayments and termination of any arrears.

The litigation was not about refund of the overpayments — it was an action for damages.

In a nutshell, the High Court held that, in these circumstances, a husband cannot sue a wife and recover damages for deceit within the marriage. There is no duty of disclosure of personal matters within a marriage unless otherwise required by law. In particular, there is no obligation to disclose an affair or (as in this case) the identity of the father of children (“paternity fraud”). This is a matter to be dealt with by personal morality, not law.

In my opinion, the proper conclusion to be drawn is that Mr Magill has been seriously wronged but has no remedy at law.

The solution is that the Commonwealth should legislate to overcome this decision.

It is obviously unsatisfactory from a public policy point of view that a wife (or any woman for that matter) be able to commit paternity fraud without there being a civil remedy for the wronged husband. It is not enough to refund the child support payments if the wife is caught out. The current availability of easy DNA testing is likely to identify many similar cases.

The law, as expressed by the High Court, is neither flexible nor modern enough to provide a remedy. So it is up to Parliament. In the meantime, perhaps all husbands should have a chat to their wives.

Peter Fray

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