Court test for duped fathers in 'DNA age'
The Australian, Australia's National newspaper, by Natasha Robinson, November 19, 2005
A FATHER who was tricked into paying tens of thousands of dollars to his unfaithful ex-wife for two children that were not his has won the right to take his six-year battle for compensation to the High Court.
A three-member sitting of the court sent Liam Magill's case to the full bench after finding yesterday that the dispute was an appropriate test of emerging social dilemmas in the "age of DNA" and sperm donation.
Mr Magill was initially awarded $70,000 by the Victorian County Court in November 2002 when he sued his wife for general damages and economic loss from his payment of child support.
However, his former wife, Meredith Magill, 37, successfully appealed against the decision when the Victorian Court of Appeal ruled there was no evidence to show she had intended to deceive her then husband about the paternity of the children.
DNA tests in 2000 showed Mr Magill was the biological father of only the first of Mrs Magill's three children.
"One may feel disquiet about having these sorts of cases in the general court," judge Michael Kirby told the Melbourne hearing.
"But it is a matter of general importance in the age of DNA and therefore a suitable issue for this court."
Mr Magill, who has not spoken publicly about his ordeal, told The Weekend Australian last night that he was thrilled he could now take his battle for damages of more than $300,000 to the High Court in Canberra.
"It's a very important social issue that affects all the brothers, fathers, sons; all the male members of the Australian community," Mr Magill said. "It's an issue that needs to be addressed at the highest level."
His current partner, Cheryl King, said the couple not only wanted compensation for the deceit, but had become fierce advocates for a child's right to know its parentage.
"We just think it's a basic human right for every child to know his or her true parentage, bloodline and medical history, and the courts need to keep up with what science has made available to us in DNA testing," Ms King said.
Yesterday's comments by Justice Kirby stand in direct contradiction to those of Victorian appeal court judge Geoffrey Eames that the case should not be seen as a test case for the issue of paternity fraud.
Mr Magill married Meredith in 1988, but 18 months into the marriage she began a long-term affair. The marriage ended in 1992.
Mr Magill continued paying child support, at the rate of 32 per cent of his income, until 1999.
He argued in Victoria's County Court, in a civil case in 2002, that he should only have paid 18 per cent of his income in child support, for his sole biological child.
After being awarded compensation, Mr Magill, who claimed he suffered psychiatric injury as a result of the deceit, was stripped of his damages on appeal.
Appearing for Mrs Magill yesterday, Fiona McLeod SC argued that the fact that Mrs Magill had listed her ex-husband as the father of the two youngest children on birth registration forms did not justify a legal case under the laws of deceit.
His lawyer today told the court this was an opportunity to rectify an area of law so that these sorts of cases may be brought before the law of deceit.
Mr Magill's case has already inspired changes to the laws of paternity, with federal Attorney-General Philip Ruddock calling for new legislation to protect the victims of paternity fraud.