By Vivien Mavropoulos, Instructing Solicitor for Liam Magill
On the 31 January 2002, Mr Magill issued proceedings in the County court based on the law of deceit. Mr
Magill alleged that he suffered loss and damages for loss of earnings and use of moneys and also for
personal injuries, comprising severe anxiety and depression in consequence of false representations made by
Mrs Magill as to the paternity of two of their three children.
On the 22 November 2002 His Honour Judge Hanlon of the County Court found that at Mrs Magill had no
genuine belief in her assertions that Mr Magill was the father of the two children or at the very least was
reckless as to that belief and awarded $70,000.00 in Mr Magills favour comprising:
(a) $30,000.00 for general damages relating to pain & suffering, loss of enjoyment of life, past,
present and future;
(b) $35,000.00 for past economic loss, constituted primarily by expenses of the children;
(c) $5,000.00 for future economic loss.
Mrs Magill appealed to the Court of Appeal of the Supreme Court of Victoria. On 17 March 2005 the Court
of Appeal overturned the judgment of Judge Hanlon.
The reasons of the Court of Appeal establish, among other things, the following matters:
First, the law of deceit is not confined to a commercial context but rather has general and flexible
application. In particular, Eames J said there is no legal impediment to the bringing of a claim in
deceit in a domestic situation between cohabitating couples such as the Magill Case.
Secondly, the Court of Appeal rejected the view that such action would cut across the no-fault
approach to family law and would open the floodgates to litigation. Eames J qualified this reasoning as
follows; whilst there is good reason to discourage traumatic litigation such as in the case of Magill, it
is not the function of the court to apply social considerations so as to deny a party a remedy which is
otherwise open to him or her.
Thirdly, His Honour Justice Eames upheld Judge Hanlons finding that the representations were false
and were made without any genuine belief or were made recklessly.
Fourthly, however the Court of Appeal held that Mr Magill did not rely on the naming by Mrs Magill of
Mr Magill as the father of the children on the birth notification forms sufficiently for the purposes of
the law of deceit.
In coming to its decision the Court of Appeal noted that the case should not be seen as a precedent
which was likely to control the outcome of any similar proceedings. In other words, it is open to bring an
action based on the law of deceit for paternity fraud.
Mr Magill is seeking leave to appeal to the High Court of Australia
An indepth look at paternity fraud, men's and children's rights. 10 minutes.
This segment of CBC News: Sunday was on a paternity fraud case in which the husband was ordered to pay child
support for 2 children which weren't his biological children.
The article contains info about children's identity fraud at The Hospital
for Sick Children in Toronto, Ontario, Canada.
December 14, 2002.
Includes interview with employees of Hospital for Sick Children in Toronto,
Ontario, Canada who admit they deny children's identity information to husbands/male
partners of mothers who want to hide the real identity of their child because
they had an affair. The U.N. Convention on the Rights of The Child specifically
supports a child's human right to have a relationship with both his/her
biological parents. In addition, this article is proof that The Hospital
for Sick Children ("Sick Kids") supports paternity fraud.
Further "Sick Kids" supports a mother's rights only, which they view,
supersedes 3 other people's rights, namely, the rights of the biological
father, the rights of the mother's male partner/husband and the child's
identity rights.
Up to one in 25 dads could unknowingly
be raising another man's child, UK health researchers estimate.
Increasing use of genetic testing for medical and legal reasons means
Read More ..uples are discovering the biological proof of who fathered the child.
The Liverpool John Moores University team reached its estimate based on
research findings published between 1950 and 2004.
The study appears in the Journal of Epidemiology and Community Health.
Biological father
Professor Mark Bellis and his team said that the implications of so-called
paternal discrepancy were huge and largely ignored, even though the
incidence was increasing.
In the US, the number of paternity tests increased from 142,000 in 1991 to
310,490 in 2001.
An adulterous Spanish woman who conceived three children with her
lover has been ordered to pay £177,000 in 'moral damages' to her
husband.
The cuckolded man had believed that the three children were his until
a DNA test eventually proved they were fathered by another man.
The husband, who along with the other man cannot be named for legal
reasons to protect the children's identities, suspected his second wife
may have been unfaithful in 2001.
Paternity Fraud & the Criminal Code of Canada
Paternity fraud: Is it or should it be a criminal offence under the Criminal Code of Canada?
Feminist organizations including the National Organization of Women (NOW)
has objected to legislation that requires the courts to vacate paternity
judgments against men who arent, in fact, the father.
Think about that. NOW wants some man, any man, to make child support
payments. The woman who doesnt even know who the father is, should not be
held responsible for her actions, is a sweet, loving, blameless mother who
seeks only to care for her child and if naming some schmuck as father who
never saw her before in his life helps her provide for the innocent babe,
well then, that's fine.
Innocence is no excuse. Pay up.
Read More ..
ABC
Australian Broadcasting Corporation
TV PROGRAM TRANSCRIPT
Broadcast: November 22, 2004
Last year, more than 3,000 DNA paternity tests were commissioned by
Australian men, and in almost a quarter of those cases, the test revealed that not only had their partners been
unfaithful, but the children they thought were theirs had been sired by someone else.
Read More ..
The fairytale that saw Federal Health Minister Tony Abbott reunited with the son he thought he had given up for
adoption 27 years ago, ABC sound-recordist Daniel O'Connor, ended this week when DNA tests confirmed another man had
fathered Mr O'Connor.
The revelations were devastating for all involved, not least Mr O'Connor.
Still reeling from the emotional reunion with his mother, Kathy Donnelly, and Mr Abbott a few months ago, a simple
test of truth has thrown the trio into disarray a situation familiar to thousands of other Australians.
Paternity testing in Australia is a burgeoning industry.
The simplicity of the test cells are collected from a mouth swab grossly underestimates the seriousness of the
situation.
Proposed new laws will make it easier for fathers to recover child maintenance
payments if DNA testing reveals that they are not the child's father.
The Family Law Amendment Bill 2005 allows people who wrongly believed they
were the parent of a child to recover any child maintenance paid or property
transferred under an order of a court under the Family Law Act 1975 .
"The bill is intended to make it easier for people who find themselves in
this position to take recovery action without the need to initiate separate
proceedings for an order from a court of civil jurisdiction, such as a State,
Local or Magistrates court," Attorney-General Philip Ruddock said.
An acid sense of betrayal has been gnawing at Damon Adams since a DNA test showed that he is not the father of a
10-year-old girl born during his former marriage.
"Something changes in your heart," says Adams, 51, a dentist in Traverse City, Mich. "When she walks through the
door, you're seeing the product of an affair."
But Michigan courts have spurned the DNA results Adams offered in his motions to stop paying $23,000 a year in child
support. Now, Adams is lobbying the state Legislature for relief and joining other men in a national movement
against what they call "paternity fraud." Read More ..
Up to three million Britons may be wrong
about who their real father is , experts claim. But using DNA paternity
tests to discover the truth can cause its own problems.
BBC, U.K., May 16, 2003
Dad's got blue eyes, Baby brown...
When Tessa found out she was pregnant after fertility treatment, she felt
a mix of delight and doubt.
This wasn't simply pre-baby nerves - she suspected that her husband might
not be the father. For Tessa had started sleeping with a colleague when the
stress of the ongoing treatment became too much.
Keen to build a family with her husband, she let him believe the baby was
his. But her lover threatened to reveal all if she ended the affair, and Tessa
soon fell pregnant again. This time, her lover started to make nuisance calls
to her home.
Tessa had no choice but to tell her husband. "I said to him, 'I've had an
affair and you may not be the father of my children.' So with that, he went
up the stairs, got dressed and left. And that was it," Tessa says in Women Who
Live a Lie, a programme for the BBC's Five Live Report.
THERE IS A story I used to find hilarious in my high school years about
a not too bright man. He was light skinned, his wife was of similar hue,
but their first child was born with very dark complexion (darker dan Bello,
blacker dan Blakka).
When the man wondered aloud about the baby's complexion his wife assured
him that the child was born dark because the child was conceived in darkness
(they had sex with the lights off). The man accepted the explanation. Because
he loved his wife dearly, he also ignored the fact that the child had other
obvious signs of resemblance to the young dark skinned man who did their
gardening. To fix the problem, the husband put flood lights, strobe lights,
spotlights and forty other lights in the bed room so there would be no more
darkness to create dark babies.
"Supporters of paternity
identification bills point to a 1999 study by the American Association of
Blood Banks that found that in 30 percent of 280,000 blood tests performed
to determine paternity, the man tested was not the biological father."
Read More ..
Download / view pdf file
American Association of Blood Banks
Parentage Testing Program Unit
Annual Report Summary Testing in 2001
