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NPO publishes blog articles to inform and to stimulate conversation about issues of importance to NPO's mission.  All blog articles express the opinions of the authors as individuals and do not necessarily reflect the views of National Parents Organization, its Board of Directors, or its executives.  

March 1, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

This is not a new case. It was decided by the Australian High Court in 2006, but more recent revelations have made it even more outrageous than it was when it was first decided.

The case is one of paternity fraud. It involved Liam Magill and his wife, Meredith. They were married in 1988, separated in 1992 and were divorced in 1998. Between 1988 and 1992, Meredith Magill gave birth to three children all of whom Liam assumed to be his and whom he supported. He continued to do so after the couple separated and after they divorced. His child support obligations at times reduced his net earnings to $130 per week. In 2000, Liam collected tissue samples from each of the children and had them tested by a DNA testing laboratory. The results indicated that two of the three children had been fathered by a family “friend,” Derek John Rowe.

Australian law permitted him to adjust his past child support debt and future child support obligations by the amount he overpaid for the two children who aren’t his. But the trauma of learning that the two children aren’t his put Liam into a deep depression to which three separate doctors testified at trial. That trial was his civil suit against Meredith for paternity fraud.

That suit was brought under the legal cause of action for deceit. The trial court found in Liam’s favor and awarded him $70,000 in damages. Meredith appealed and the appellate court and the High Court found in her favor. I’ve linked to the High Court’s opinion which can charitably be called a decision in search of a reason.

The nut of the matter is that, in Australian law, the court could find no obligation on the part of a wife to tell the truth about the paternity or possible paternity of any child to whom she gives birth. Amazingly, in a suit based on the common law tort of deceit, the Court voted unanimously for deceit. According to the court, the law, which is everywhere freighted with the obligation to tell the truth, contains no requirement civil or criminal that a mother tell the truth about paternity. Apparently she needn’t do so at any time to anyone.

[I]t is notorious that free, and not always disinterested and wise advice abounds in a family setting". So, in some family settings, does misleading conduct. The duty of care controls potential liability for carelessness. False representations about paternity could be the result of carelessness rather than deliberate fraud. Furthermore, in domestic and other personal relations, in between carelessness and deliberate fraud there may be conduct which is not easy to classify in simple moral terms…

One of the obvious difficulties about the topic of paternity, or the wider topic of sexual infidelity, (a difficulty that is not peculiar to those topics), is the danger of creating something very close to a legal duty to disclose facts in circumstances where there could be a serious question about the existence of a corresponding ethical obligation. With hindsight, we know that the marriage of the parties to the present proceedings later broke down. Suppose it had not broken down. Suppose that, partly in consequence of the respondent's failure to disclose her infidelity, the marriage had remained intact. Would the respondent at some point have been under an obligation to reveal the truth? It may be one thing to say that, when the respondent claimed that the appellant was legally bound to make child support payments, she ought to have told him that he was not the father of two of her three children. Yet the appellant's case implies that, when she handed him the notification of birth forms to sign, at a time when the marriage was intact, she had a duty to tell him. The Family Law Act declares the need to preserve and protect the institution of marriage. That is a legislative expression of public policy. The imposition of a legal duty of disclosure of infidelity would, in the practical circumstances of many cases, be contrary to that policy. There is no foundation, either in principle or authority, for the recognition of a general duty of that kind. That, however, is not to deny that such a duty could exist in particular circumstances.

In short, because a marriage may remain intact if the truth about paternity is not disclosed and may dissolve if it is disclosed, a lie about paternity is better than the truth. Really. Now the number of ways that’s just incorrect, inaccurate and immoral are truly daunting. Where to begin?

Perhaps with the concept of children’s welfare. For all sorts of reasons, children need to know who their father is. The truth about the nature of one’s biological inheritance can be a matter of life and death. Medical providers may well need to know the genetic predisposition of a patient in order to diagnose and treat him/her accurately. A person who does not know the identity of his father cannot give accurate medical information.

And of course there’s a public policy that men who sire children should be responsible for their support. Mr. Rowe didn’t support his children for at least 11 years. A man with no legal obligation to do so did.

Then there’s the basic fact that “preserving and protecting the institution of marriage” is poorly done when doing so requires multiple lies by one partner to the other. And not just any lies. We all know that some lies are better than others. “You look beautiful today, dear,” may not be strictly true, but it is intended to and probably does give the other person pleasure, a bit of a lift in an otherwise dull day.

Apparently I have to explain to the judges of the High Court that lying about paternity is not a “little white lie,” i.e. one that’s designed to make another person’s life a little better. As Liam’s subsequent depression makes clear, telling the truth to a man about whether he is or isn’t the father of one’s child is one of the most important things a woman can do. The august judges prefer not to think about it, but it’s a fact. In a sane world, that would have been established in law long ago.

But what of this “preserving the institution of marriage?” One little matter the judges managed to overlook is that Meredith had been having sex with Mr. Rowe almost from the date of her wedding to Liam. Is that what they call preserving the institution of marriage? It looks very much like Meredith had not the least respect for marriage or Liam. So what purpose does it serve for her to be protected from her own mendacity? To preserve a marriage she disdains? Please.

And while we’re on the subject, did the judges notice that in fact the Magill marriage was not preserved? Remember, they divorced. Whatever interest might be served by the Court’s brief for deception ended, if not the day they separated, then certainly the day they divorced. There is very clearly no point in protecting Meredith’s right to lie to her husband once he’s not her husband anymore, but that’s precisely what the Court did.

The Court’s “reasoning” further founders on the rocks of common sense. What if the law imposed a duty on mothers to tell the truth about paternity to all the possible fathers of their children? And what if, in the Magill’s case, Meredith had done so and Liam had divorced her? First, the results would have been no different as far as the marriage went, but Mr. Rowe would have had an opportunity to get to know his children and they him.

But what if Liam had, as many men do, decided to remain married because he’d formed relationships with the kids and didn’t want to hurt them by divorcing their mother? That’s a distinct possibility, but one that the court’s refusal to impose a duty of disclosing the truth on the mother forecloses. In short, the Court seeks to control men’s behavior in accordance with the wishes of the women to whom they’re married.

And that of course is what the matter of paternity fraud (and its treatment in the law) is all about. Paternity fraud is about power. She who has the knowledge has the power; he who doesn’t, doesn’t. Paternity fraud is nothing but a mother’s deciding who will and who won’t be her child’s “father.” Yes, she had sex with John, but he doesn’t look like such good marriage or parental material, so Jim’s her choice. To him she’ll give the breathless news “I’m pregnant.” Of him she’ll ask what names he prefers, should they remodel the den as a child’s room, should they move to a better school district. He’ll be the one to attend medical appointments, see the ultrasound, etc., etc.

To John, by contrast, she’ll be a stranger. She may tell him she needs to move on, that their relationship wasn’t such a good idea in the first place, that she’s found a new guy. Or she may just stop returning his calls. Who knows? The point is clear enough. Whoever the father is in reality, she’s the one to decide which man comes to believe he is and which one never even knows she’s pregnant.

And that, my friends is power. It is that power that every single jurisdiction that refuses to acknowledge a cause of action for paternity fraud goes to bat for. Like the Australian High Court, those countries, states and provinces endorse dishonesty about one of the most important things in any man’s and any child’s life. They do so in order to maintain mothers’ control over matters relating to children.

I could go into considerable detail about how that process of dumping all rights and duties regarding children hamstrings the very people for whom we are supposedly so solicitous, i.e. mothers. Placing that obligation on mothers means they have less opportunity to work, earn and save. Unsurprisingly, mothers without husbands are the poorest members of our society.

At this point, the Magill case is just another run-of-the-mill outrage in the annals of paternity fraud. But it’s no such thing. No, it’s much worse. Much, much worse.

That’s because, about four years after it was decided, Magill learned that one of the High Court judges who decided the case, Judge Susan Crennan, had done the same thing 30 years previously that Meredith Magill did to her husband. That’s right, a woman who perpetrated fraud on two men (the true father and the one she named) and got away with it, sat in judgment of just such a case. And guess what. She sided with the mother.

Now, a clearer case of a conflict of interest could scarcely be imagined. How many car thieves do we have hearing cases of car theft? Not too many, but amazingly, not only did Crennan not recuse herself from hearing the Magill case, no one has seen fit to provide Liam Magill any sort of remedy. Lawyers, judges, the Attorney General of Australia, lawmakers all find nothing odd or reprehensible about Crennan’s plain conflict of interest.

Lawyers are ethically bound to avoid even the appearance of a conflict of interest in their representation of clients. Judges are held to even higher ethical standards. But not in the Magill case. There two men and two children were done grievous intentional wrongs for which the law, on the thinnest of pretexts, provides no remedy. And the cherry on top is that one of the judges so ruling had committed the identical wrong herself.

It boggles the mind.

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

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