Mirko Bagaric has described the High Court’s decision in Magill v Magill as “farcical” (in Crikey last Friday). But if you look at the case carefully, the High Court’s decision is far from farcical.

The unfortunate circumstances of the case arose when, after his marriage had broken down, Mr Magill discovered that he was not the father of the younger two of the three children born to his wife during their marriage. Mr Magill had paid child support payments for all three children from 1992 to late 1999.

It is very important to note that Mr Magill was not seeking compensation for the child support payments which he had made up until 1999. He was seeking compensation for the severe anxiety and depression he suffered as a result of the discovery that two of “his” children were not, in fact, his. He further claimed for loss of earnings, such as compensation for time taken off work for the birth of the two younger children.

You may be wondering how the High Court could find that there was no deceit in this situation. “Deceit” refers to the tort of deceit. There is no doubt that Mr Magill was deceived in the ordinary sense of the word: but could he establish the tort of deceit?

The tort of deceit provides compensation for persons who have suffered injury as a result of of dishonesty. It usually only applies to commercial situations (for example, a dishonest salesman deceives a purchaser into making a dud purchase). Mr Magill sought to use the law of deceit as a vehicle for revenge on his ex-wife. Although it is understandable that he was very distressed and aggrieved, this was not a suitable case for extension of the law. There is enough vengeance in marriage breakdown as it is.

After the decision, Mr Magill’s lawyer said to the press: “What they (the judges) are saying is that if a child is born within a marriage it’s presumed to be a child of that marriage, end of story.” I think our society does make that presumption even if the presumption is not always true, as this case shows. But you can’t use the law to force people to be loyal and true. Let’s be realistic here: making the cheating partner pay damages to the loyal partner is not going to stop infidelity.

IThe people who have been forgotten in this whole mess are the three children. Apparently Mr Magill has not had contact with them since 2000. They have lost their father  — or at least, the person they thought was their father — and they’re the ones to feel sorry for.

Peter Fray

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