Secret infidelity approved by court

Natasha Robinson and Stephen Lunn

November 10, 2006

HUSBANDS and wives who cheat on their partners have no legal obligation to disclose their infidelity, the High Court has ruled, declaring such matters “should be left to the morality of spouses”.

Duped father Liam Magill was “devastated” yesterday after failing to secure $70,000 awarded by a lower court for his pain and suffering after DNA tests proved he did not father two of the three children born during his four-year marriage.

Mr Magill will now also have to find a way of paying the “massive” legal costs for the original trial, his ex-wife’s Supreme Court appeal, and the High Court case – actions in which both sides instructed Queen’s counsels and junior barristers.

In bringing the High Court action, Mr Magill and his supporters in the men’s rights movement had attempted, through the courts, to force women who have doubts about the paternity of their child to disclose those doubts to their partners.

But three judges found “there is currently no recognised legal or equitable obligation, or duty of care, on a spouse to disclose an extra-marital sexual relationship to the other spouse”.

“There is a mantle of privacy over such conduct which protects it from scrutiny by the law,” said judges Susan Crennan, William Gummow and Michael Kirby, noting that modern legislation allowed fathers access to DNA testing and refunds for child support in cases of paternity fraud.

“Private matters of adult sexual conduct and a false representation of paternity during a marriage are not amenable to assessment by the established rules and elements of deceit … they should be left, as they are now, to the morality of the spouses.”

But Lone Fathers Association president Barry Williams said the judges weren’t dealing with real life.

“They are sending a message that a woman can have a child to anyone, but don’t worry because your husband will pay for it, no matter what,” Mr Williams said.

“The judges have eroded the sanctity of wedding vows when they promise to love and honour each other, and stay true to each other.”

In the unanimous decision by the High Court’s full bench, the judges ruled Mr Magill failed to establish he was deceived by birth registration forms signed by his then wife, Meredith, which nominated him as the father of the two children.

The Melbourne couple were married for four years, but Ms Magill began an affair after 17 months. Mr Magill paid child support for three children for eight years in the belief that he fathered them all.

High Court Chief Justice Murray Gleeson said suing for damages for deceit was not open in Mr Magill’s case.

“Distress, disappointment, frustration and anger may all be natural responses to a deception, but the tort of deceit does not set out to compensate people for wounded pride or dignity, or for the pain of broken illusions,” Judge Gleeson said.

Sydney family law specialist Stuart Fowler said men had to accept there was “more to being a father than being a sperm donor”.

“It is not an uncommon occurrence for men to find out they are not the father of children they believed they were. However, in their legal claims they often fail to mention the benefit of having the child call him ‘dad’, the pride they’ve taken in their child’s achievements and the pleasure they’ve taken from the child’s pride in them,” Mr Fowler said.


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