HIGH COURT OF AUSTRALIA
GLEESON CJ
GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJLIAM NEAL MAGILL APPELLANT
AND
MEREDITH JANE MAGILL RESPONDENT
Magill v Magill
[2006] HCA 51
9 November 2006
M152/2005ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of Victoria
Representation
N Lucarelli QC with J C Paterson for the appellant (instructed by Vivien Mavropoulos & Associates)
H M Symon SC with A J Palmer for the respondent (instructed by Clayton Utz Lawyers)
D M J Bennett QC, Solicitor-General of the Commonwealth with R M Doyle intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Magill v Magill
Tort – Deceit – Paternity – Whether tort of deceit can be applied in marital context in relation to false representations of paternity − Where false representations were made by wife in course of marriage concerning paternity of children born during marriage − Where birth notification forms completed by wife represented husband to be father − Where DNA testing after marriage ended revealed two children of the marriage were not the biological children of the husband − Where husband claimed damages in deceit for loss of earnings, loss of use of moneys, personal injury and pain and suffering − Relevance of history of tort of deceit − Relevance of abolition of inter-spousal immunity in tort by Family Law Act 1975 (Cth) − Relevance of statutory scheme intended to minimise role of fault in determining legal rights and liabilities following breakdown of marriages − Relevance of statutory regime under Family Law Act 1975 (Cth) for repayment of moneys wrongly paid for child support − Relevance of public policy considerations.
Statute − Statutory construction − Family Law Act 1975 (Cth) − Whether tort of deceit is excluded from applying between spouses by the Family Law Act 1975 (Cth) − Whether ss 119 and 120 of the Family Law Act 1975 (Cth) expressly or impliedly preclude an action for deceit by a husband in respect of false representations made by the wife during the subsistence of the marriage as to the paternity of children of the marriage.
Words and phrases – "deceit", "inter-spousal immunity", "paternity fraud".
Child Support(Assessment) Act 1989 (Cth), ss 107, 143.
Family Law Act 1975 (Cth), ss 43, 48, 51, 66X, 69P-69X, 119, 120.
Matrimonial Causes Act 1959 (Cth), ss 21, 28, 44, 98.
GLEESON CJ. The appellant and the respondent married in April 1988. They separated in November 1992. The marriage was dissolved in February 1998. Between 1988 and 1992, the respondent gave birth to three children: a son born in April 1989, another son born in July 1990, and a daughter born in November 1991. After the separation, following an application by the respondent, the appellant made payments under the Child Support (Assessment) Act 1989 (Cth) in respect of all three children. Such payments continued, although not without interruption, until late 1999. In April 2000, by DNA testing, it was established that the appellant was not the father of either the second child or the third child. Pursuant to s 143 of the Child Support (Assessment) Act, the appellant became entitled to an adjustment of child support payments to allow for past over-payments, and an extinguishment of arrears. The relevant statutory provisions operated of their own force to deal with the matter of child support liability and payments, and that matter was not the subject of the litigation with which this appeal is concerned.
In January 2001, the appellant commenced proceedings against the respondent in the County Court of Victoria. The cause of action sued upon was the tort of deceit. The damages claimed were of two kinds. First, the appellant alleged that he had suffered personal injury, in the form of anxiety and depression, in consequence of the respondent's fraudulent misrepresentations. Secondly, he claimed financial loss, including loss of earning capacity by reason of his mental or psychological problems, and loss related to the time he had spent with, and money he had spent on, the children under the mistaken belief that he was their father. He also claimed exemplary damages. The appellant succeeded at trial, and was awarded damages of $70,000. This did not include any amount by way of exemplary damages. The decision of the trial judge was reversed by the Court of Appeal of the Supreme Court of Victoria (Ormiston, Callaway and Eames JJA) on the ground that the appellant had failed to establish the essential elements of the tort of deceit[1]. The appellant now appeals to this Court, seeking the restoration of the original award of damages.
[1][2005] Aust Torts Reports ¶81-783; (2005) 33 Fam LR 193.
By notice of contention, the respondent argues that the action was misconceived, and that even if, contrary to the opinion of the Court of Appeal, all elements of the common law tort of deceit otherwise had been made out, nevertheless the remedy pursued by the appellant was not available for the following reasons:
1.Section 119 of the Family Law Act 1975 (Cth), which permits one party to a marriage to sue the other in tort, does not apply to the tort of deceit or, alternatively, s 120 of that Act precludes an action for deceit based on a false representation of paternity.
2.The tort of deceit does not extend to claims for damages arising from misrepresentations as to the paternity of children conceived and born during the course of a marriage.
For the reasons that follow, I consider that proposition 1 is without substance. Proposition 2 should not be accepted, although the scope for the operation of the tort of deceit in the case of communications within the context of a marital relationship is influenced, and often limited, by that context.
The appellant's claim and the award of damages
At the trial, it was common ground that the father of the respondent's second and third children was a man with whom she had commenced a sexual association in September 1989 (that is, about 17 months after her marriage, and about five months after the birth of her first child). According to the respondent's evidence, she had sexual intercourse with that man once every two or three weeks until mid-1990, and less frequently after the birth of her second child. Her evidence was that when she became pregnant with her second child, she believed it was possible that this other man was the father, although when she became pregnant with the third child she believed her husband was the father. In August 1995, almost three years after their separation, the appellant learned that the respondent at least suspected that the second child was not his child. It was not until April 2000 that DNA tests confirmed that the appellant was not the father of either the second or the third child. It was then that the necessary adjustments were made in respect of past and future child support payments.
In September 1999, the appellant sought treatment from a psychiatrist, Dr Chong. According to the psychiatrist, the appellant presented with severe depression, from which he had been suffering for a number of months. In a report written in June 2002, Dr Chong said:
"Mr Magill told me that his depression and anxiety state [sic] started in the setting of on-going stress from the Family Court regarding 'child support', financial difficulty and unreasonable demand [sic] from his ex-wife. He was so stressed by the 'child support agency' that he has had persistent nightmares about them threatening and harassing him. His depression and the accompanied [sic] panic and anxiety symptoms became worse when he found out with DNA testing ... that 2 of his 3 children were not fathered by him. This knowledge had devastated Mr Magill, causing him a lot of emotional turmoil."
Without doubt, the appellant's wife deceived him, but the hurtful deception was in her infidelity, not in her failure to admit it. The devastation he mentioned resulted from his knowledge of the truth when finally it was made known to him. That knowledge, in turn, came to him at a time when he was already distressed by the consequences of the breakdown of his marriage.
When the appellant's lawyers sought to express his complaints in legal form, in terms of the tort of deceit, they made the following allegations. (The original complaints made some references to the issue of child support, but at the trial these were agreed to be immaterial.) In late 1989, the respondent represented to the appellant that he was the father of the second child. In early 1991, the respondent represented to the appellant that he was the father of the third child. Both representations were false. On the faith of the representations the appellant believed he was the father, and altered his position to his detriment. The representations were made fraudulently, with the respondent either knowing they were false or recklessly not caring whether they were true or false. At the time of the representations the respondent intended the appellant to rely on them. As a result of the representations the appellant suffered loss and damage. The damage included severe anxiety and depression and loss of earnings.
At the trial, much attention was given to the need to particularise and prove the representations on which the appellant sued. This exposed a difficulty in fitting the case into the mould of the common law tort of deceit. From one point of view, the appellant's claim that he was misled about the paternity of the children may have appeared easy to establish. The problem was to identify a representation by the wife. It may be inferred that, while the parties were living together, and at least for a time thereafter, the respondent, by her conduct, would have said and done things many times, and in many different ways, that reinforced the appellant's assumption that he was the father of all three children. In circumstances where he obviously believed he was the father, and accepted the responsibilities of fatherhood, her silence would have contributed to his belief. Yet, in the absence of a legal or equitable obligation to tell the truth, silence of itself does not amount to misrepresentation[2]. The trial judge would have appreciated that a finding of a legal or equitable duty in the respondent to disclose her infidelity would take him into deep waters. He made no such finding. He put his conclusion as to the representations of paternity upon a very narrow basis. Soon after the birth of each of the second child and the third child, the respondent signed, and gave to the appellant to sign, a form of Notification of Birth addressed to the Registrar of Births, Deaths and Marriages. The forms described the appellant as the father and the respondent as the mother. This conduct of the respondent was found to constitute, in each case, the representation by the respondent to the appellant that he was the father of the child. That, in turn, had consequences for the approach that was taken to the issues of inducement, and damage.
[2]Kerr on Fraud and Mistake, 7th ed (1952) at 50-51.
When the appellant was asked in evidence why he believed he was the father of the two children, he made no reference to the birth notification forms, or to any other specific words or conduct of his wife. He said:
"Well, I had no reason not to believe [that I was the father]. I watched all three of the children born. I was present at the hospital when all three children were born ... and I had no reason to believe that any of [the] children weren't mine."
Having found that the representations were made, the judge noted that it was not in dispute that they were false. This was established by the DNA testing.
As to the respondent's state of mind concerning the representations, the trial judge found:
"I am of the view that the evidence points very strongly in favour of the conclusion that she did know that her husband was not the father of either of the children. Certainly at the very least, in my view, it pointed to the conclusion that when she filled in these forms, if she did not know for a positive fact that Mr Magill was not the father, she at least was being reckless as to the truth of her assertion, that he was and had no genuine belief in it. She intended Mr Magill to rely upon it, as indeed he did, in consenting to the naming of the children Magill."
After referring to the medical evidence, the trial judge summed up his conclusion as to the appellant's condition as follows:
"The opinions seem to me of the three doctors to be fairly close together. They express themselves in different ways, and I think the easiest for a layman to understand is probably Dr Kornan's assessment of the situation, which is that the marriage break up itself on any view of it would be an extremely disturbing thing to befall anybody. And the situation [is] simply made worse when he discovers the truth about the paternity of the children, and discovers that he has been misled over the period of years as to his paternity."
That description of the appellant's harm, which accords with the way he himself expressed his health problems to Dr Chong, amounts to the proposition that the distress he suffered from the breakdown of his marriage and the subsequent disputes with his wife was exacerbated by the discovery that he had been misled about the paternity of two of the children.
The basis of the appellant's claim to have suffered economic harm, apart from the presently irrelevant matter of the overpayments of child support, is not clear, either from the record of the trial or the reasons of the trial judge. The claim appears to have included consequential loss flowing from the disability that resulted from the appellant's depression and anxiety, such as some modest loss of earning capacity. There was also an attempt to quantify "expenses involved in supporting the two children" and a claim for "compensation for time off work attending to them at birth". The trial judge was unconvinced by the attempts to quantify these claims, but considered the appellant was entitled to something. The appellant was awarded $30,000 "by way of general damages for pain and suffering, [and] loss of enjoyment of life, past, present and future", $35,000 for past economic loss, and $5,000 for future economic loss. The judgment was for $70,000.
The tort of deceit
In Donoghue v Stevenson[3] Lord Atkin said that "acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief". Various control mechanisms are adopted by the common law to "limit the range of complainants and the extent of their remedy"[4]. The most obvious example is the requirement, in the case of the tort of negligence, of a duty of care.
[3][1932] AC 562 at 580.
[4][1932] AC 562 at 580 per Lord Atkin.
The tort of deceit provides a legal remedy for harm suffered in consequence of dishonesty, but, as Viscount Haldane explained in Nocton v Lord Ashburton[5], the concept of "fraud" is wider in some legal contexts than in others. He said[6]:
"Derry v Peek simply illustrates the principle that honesty in the stricter sense is by our law a duty of universal obligation. This obligation exists independently of contract or of special obligation. If a man intervenes in the affairs of another he must do so honestly, whatever be the character of that intervention. If he does so fraudulently and through that fraud damage arises, he is liable to make good the damage. A common form of dishonesty is a false representation fraudulently made, and it was laid down that it was fraudulently made if the defendant made it knowing it to be false, or recklessly, neither knowing nor caring whether it was false or true. That is fraud in the strict sense." (emphasis added)
[5][1914] AC 932 at 950-955.
[6][1914] AC 932 at 954.
His Lordship's reference to intervening in the affairs of another, and through fraud, causing damage, reflects the business context in which the action on the case for deceit emerged, and in which it had, and still has, a natural place. The elements of the tort fit comfortably into such a setting. Pasley v Freeman[7], in 1789, was an action by a plaintiff who was induced to extend credit to an insolvent third party on the faith of the defendant's fraudulent representation that the third party was a person of financial substance. The action succeeded even though there was no contract of suretyship. It was the combination of fraud and damage that entitled the plaintiff to sue. In 1837, in Langridge v Levy[8], Parke B said that the principle laid down by Pasley v Freeman was that a "mere naked falsehood" would not give a right of action, but if a falsehood is told with an intention that it should be acted upon by the party injured, and that party acts upon it in a way that produces damages to him, an action will lie.
[7](1789) 3 TR 51 [100 ER 450].
[8](1837) 2 M & W 519 at 531 [150 ER 863 at 868].
In the Third Edition (1868) of Bullen & Leake's Precedents of Pleadings[9] there appear references to a series of cases exemplifying actions for damages for fraudulent misrepresentation. They are cases in a business context. Not all claims in deceit, however, have involved cases where loss resulted from a contractual dealing. In Richardson v Silvester[10], in 1873, the defendant caused to be published an advertisement to the effect that a certain farm was available for letting. The plaintiff, at some expense to himself, inspected the property. It was alleged that the advertisement was deliberately false. It was held that the plaintiff, on the facts alleged, had a cause of action to recover, by way of damages, his wasted expenses.
[9]At 333-337.
[10]Richardson v Silvester (1873) LR 9 QB 34.
Not all actions said to have been allowed on the principle of Pasley v Freeman were commercial in nature, although Wilkinson v Downton[11], decided in 1897, and Janvier v Sweeney[12], decided in 1919, which were cases of deception causing nervous shock, would probably now be explained either on the basis of negligence, or intentional infliction of personal injury[13].
[11][1897] 2 QB 57.
[12][1919] 2 KB 316.
[13]See Lord Hoffmann's discussion of the cases in Wainwright v Home Office [2004] 2 AC 406 at 425.
Almost 200 years after Pasley v Freeman, the modern common law began to refine the principles according to which damages may be recovered for loss resulting from certain kinds of misrepresentation that were not fraudulent but merely careless. In Hedley Byrne & Co Ltd v Heller & Partners Ltd[14], the concept of the duty of care, a control mechanism by which the law limited the range of complainants, was explored in its application to determining who might sue in respect of financial harm suffered in consequence of another person's careless statements. The capacity for careless advice or information to cause harm is extensive. The search for a satisfactory exposition of the concept of duty of care in this context resulted in a division of opinion in the Privy Council in Mutual Life & Citizens' Assurance Co Ltd v Evatt[15]. The actual decision in that case is presently immaterial; what is significant is the kind of problem it exemplifies. The problem could well arise in a domestic context. As Dickson CJ pointed out in Frame v Smith[16], "[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.
[14][1964] AC 465.
[15][1971] AC 793.
[16][1987] 2 SCR 99 at 110.
If, in the area of actionable deceit, there is to be a control mechanism which, like the duty of care in negligence, limits the range of complainants, then it is difficult to see, as a matter of legal principle, as distinct from legislative fiat, how the limitation could operate by reference to one specific kind of representation. Plainly, representations about paternity relate to a sensitive issue, but there are other subjects of representation that could also relate to topics of sensitivity.
False representations of paternity could be made in a variety of circumstances, some of which might be closely linked to questions of property, or financial undertakings. They could be made before, during, or after marriage. They could be made between parties who are negotiating a pre-nuptial contract, or a separation agreement, or a divorce settlement. They could be made for the specific purpose of inducing a certain kind of dealing with property, or a certain kind of financial commitment. The distinction between business affairs and domestic affairs is not always clear cut. People, in anticipation of, during, or after, marriage enter into financial arrangements, and create rights and obligations which are plainly intended to have legal consequences. Not all people who cohabit in a domestic relationship intend to marry. Not all married people cohabit in a domestic relationship. Some might intend to divorce, but until their marriage is dissolved by court order they remain married. Some married people separate without any intention to divorce. Marriage is not merely one of a number of alternative forms of domestic relationship. Among other things, it is a matter of legal status. Certain formalities are required for its formation and its dissolution. It is attended by legal requirements of exclusivity, and publicity. In Australia, a person may have only one husband or wife at any one time. Marriages must be recorded on a public register[17]. Marriage is a context in which the law of deceit, in many circumstances, may be difficult to apply, but in modern social conditions it is difficult to mark it out as a zone of special immunity from liability for one particular kind of tort, or one particular form of deceit. Furthermore, representations about paternity could be made to a third party, such as a parent or relative of a putative father, with intent to induce the making of financial arrangements.
[17]eg Births, Deaths and Marriages Registration Act 1996 (Vic) s 31.
There is, however, an aspect of marriage that makes the topic of representations of paternity to a spouse one to be approached with particular caution. The Family Law Act 1975 (Cth), in s 43, speaks of "the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life". As Jacobs J explained in Russell v Russell[18], the institution originated, at least in Western society, partly as a means of involving males in the nurture and protection of their offspring. Blackstone, in his Commentaries[19], described marriage as "built on this natural obligation of the father to provide for his children". The structure of marriage and the family is intended to sustain responsibility and obligation. In times of easy and frequent dissolution of marriage, the emphasis that is placed on the welfare of the children reflects the same purpose. The appellant, when asked to explain why he believed he was the father of his wife's children, said that he had no reason not to believe it. As a married man, he was living in an environment that was designed to reinforce his parental role and obligations. There was an artificiality involved in the search for representations that he was the father of the two children. His wife had no need to make any such representations. The circumstances of their relationship constantly conveyed to him, and reinforced, that message, as they were meant to do. In many marriages, an express representation of paternity is likely to be made only if there is some reason for doubt. Few husbands expect, or seek, from their wives, assurances of paternity. Such assurances, if volunteered, would often raise, rather than resolve, suspicions. Nevertheless, there could be cases, even if exceptional, in which such assurances are sought, and given, in circumstances where there is no reason in principle to deny a remedy.
Family Law Act 1975 (Cth) ss 119, 120
[18](1976) 134 CLR 495 at 548-549.
[19]Blackstone's Commentaries, 15th ed (1809), vol 1 at 447.
The Family Law Act provides:
"119. Either party to a marriage may bring proceedings in contract or in tort against the other party.
120. After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage."
The legal and historical context of those provisions makes it plain that they do not have the consequences suggested in the respondent's notice of contention.
Section 119 entirely abolished the old spousal immunity based upon the concept that, at law, husband and wife are one[20]. The immunity disappeared from the law by degrees. It is unnecessary to trace the origins of the concept, or the stages by which it was broken down. With s 119, it went completely. Actions in contract or tort between spouses, or former spouses, are now commonplace.
[20]Chant v Read [1939] 2 KB 346; Corcoran v Corcoran [1974] VR 164.
As was noted above, the status of marriage may exist even when the parties to it are completely at arm's length. People who are married, happily or unhappily, may sue one another for the full range of torts. It is impossible to accept that the legislation, sub silentio, makes fraud an exception. Such a consequence would be absurd. Why should a woman, who is about to enter into a separation agreement with her husband, not have the full extent of the law's protection, including its protection against fraud? Why she might be able to sue him for negligent misrepresentation, but not for fraudulent misrepresentation, defies rational explanation.
Section 120 abolishes certain causes of action against third parties, which had no direct relationship to the tort of deceit. They reflected a view of the relationship between husbands and wives that is no longer held. Section 120 might have been in point had the appellant's lawyer dusted off some old law books and attempted to bring an action against the father of the two children in question, but it has nothing to do with the present case.
There is therefore no occasion to consider the appellant's challenge to the constitutional validity of these two sections. They do not stand in the path of his claim.
Proposition 2 in the notice of contention
The respondent's second proposition is similar to an argument that was considered, and rejected, by Stanley Burnton J in England in 2001. The case was P v B (Paternity: Damages for Deceit)[21].
[21][2001] 1 FLR 1041; see also Bagshaw, "Deceit Within Couples" (2001) 117 Law Quarterly Review 571.
It is not clear whether the respondent's contention is that representations as to paternity occupy a unique place in the law of deceit. If they are only a particular example of a wider class of representation, it was not made clear what that class is said to be. The respondent's contention would solve the present case, but if it is only a particular application of a more general principle then that principle was not stated.
The facts of the present case show the difficulties that often will be involved in attempting to deal with a grievance such as that of the appellant under the rubric of actionable deceit. Yet it is possible to imagine cases in which the elements of the tort would be recognisable, and justice would demand a remedy. The argument in P v B was expressed in terms of "cohabiting couples". Not all married people fall within that description. Some, whether or not they intend to divorce, deal with one another in circumstances where their respective legal rights and obligations are to the forefront of their concerns. They may be communicating through lawyers. In such a context, representations may be sought and given on the clear understanding that they are intended to be acted upon, perhaps in respect of matters affecting rights of property or financial obligations. The parties may be as much at arm's length as people who are dealing in the business context in which the tort of deceit originated.
There are problems involved in inappropriate intrusion by the law of deceit into the domestic context. However, as a suggested solution to those problems, the respondent's proposition is both too wide and too narrow. Whether it is put in terms of representations of paternity, or widened to cover extra-marital sexual relations, the same question remains. Why single out that particular kind of representation? There are many other kinds of representation that may be made in a domestic context about matters that are regarded by the parties as intimate and sensitive.
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.
Finally, there is a difficulty about proposition 2, once it is accepted (as it should be) that s 119 of the Family Law Act applies to all forms of tort. Since Parliament has abrogated, in general terms, spousal immunity, judicial creation of a new form of immunity, applicable to spouses but limited in its operation to a certain kind of tort, or a certain kind of representation, is inconsistent with the legislation. Of course, the legislative reference to tort picks up developments in the common law as they occur from time to time. Yet the creation of an inflexible exception to the general right given by s 119, by reference to a certain kind of deceit, regardless of the circumstances of the individual case, contradicts s 119.
The elements of actionable deceit as applied to the appellant's claim
The elements of the tort of deceit were stated by Viscount Maugham, in Bradford Third Equitable Benefit Building Society v Borders[22], as follows (omitting his Lordship's citation of authority):
"First, there must be a representation of fact made by words, or, it may be, by conduct. The phrase will include a case where the defendant has manifestly approved and adopted a representation made by some third person. On the other hand, mere silence, however morally wrong, will not support an action of deceit. Secondly, the representation must be made with a knowledge that it is false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true. Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him. If, however, fraud be established, it is immaterial that there was no intention to cheat or injure the person to whom the false statement was made. Fourthly, it must be proved that the plaintiff has acted upon the false statement and has sustained damage by so doing."
[22](1941) 2 All ER 205 at 211.
His Lordship's reference to "mere silence" contemplates, by way of contrast, the possibility of a case where there is a legal or equitable duty to speak and disclose the true facts.
The courts have also insisted on specificity and particularly in pleading allegations of fraud. In Lawrance v Norreys[23], Lord Watson quoted the rule expressed by Earl Selborne in Wallingford v Mutual Society: "General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any Court ought to take notice." Lord Watson added: "There must be a probable, if not necessary, connection between the fraud averred and the injurious consequences which the plaintiff attributes to it; and if that connection is not sufficiently apparent from the particulars stated, it cannot be supplied by general averments."
[23](1890) 15 App Cas 210 at 221.
The author of McGregor on Damages[24] points out that, reflecting the tort of deceit's close connection with contractual situations, most claims for damages in this area are for pecuniary loss resulting from acting in reliance on a misrepresentation by entering into a contract with the defendant or a third party. However, possible forms of pecuniary loss are not limited to such circumstances. Lord Atkin, in Clark v Urquhart[25], said:
"I find it difficult to suppose that there is any difference in the measure of damages in an action of deceit depending upon the nature of the transaction into which the plaintiff is fraudulently induced to enter. Whether he buys shares or buys sugar, whether he subscribes for shares, or agrees to enter into a partnership, or in any other way alters his position to his detriment, in principle, the measure of damages should be the same, and whether estimated by a jury or a judge. I should have thought it would be based on the actual damage directly flowing from the fraudulent inducement". (emphasis added)
[24]17th ed (2003) at 1488.
[25][1930] AC 28 at 67-68.
Harm may result from a course of action induced by a fraudulent misrepresentation, even though it has nothing to do with questions of contract or with inducement to undertake financial obligations. An example is Mafo v Adams[26] where the plaintiff was fraudulently induced to undertake an unpleasant journey, and was awarded compensation for the inconvenience and discomfort. (The case of Richardson v Silvester[27], earlier mentioned, was a case where a plaintiff was compensated for the expense of a fraudulently induced journey.) There is no reason in principle why the harm for which the tort may provide compensation should not include personal injury, or why personal injury should not include psychiatric injury, but the harm for which damages are awarded is the "actual damage directly flowing from the fraudulent inducement", that is to say, the damage directly flowing from the alteration of the plaintiff's position which occurred as a result of the inducement. Distress, disappointment, frustration and anger may all be natural responses to discovery of deception, but the tort of deceit does not set out to compensate people for wounded pride or dignity, or for the pain that results from broken illusions.
[26][1970] 1 QB 548.
[27](1873) LR 9 QB 34.
As the Victorian Court of Appeal held, in a number of respects the appellant's case, as accepted by the trial judge, failed to establish the elements of the tort of deceit. These deficiencies are all significant, but they reveal a deeper problem with the appellant's case. It will be necessary to return to that problem after having measured the appellant's case against the generally accepted requirements of the tort. The appellant was attempting to press into service, in support of a private and domestic complaint, a cause of action that was unsuited for the purpose. This is not because marital relations are a tort-free zone, or because actionable deceit can never occur between cohabiting parties or in respect of questions of paternity or marital or extra-marital relations. It is because the law of tort, like the law of contract, is concerned with "duties and rights which can be dealt with by a court of justice"[28], and the appellant's case was difficult to accommodate to that setting.
[28]Rose and Frank Co v J R Crompton and Bros Ltd [1923] 2 KB 261 at 289 per Scrutton LJ, quoting Pollock, Principles of Contract, 9th ed (1921) at 3.
First, as to the representations found by the trial judge, reference has already been made to the narrow and artificial basis upon which the appellant's case was accepted. The respondent simply handed to the appellant, for signature, routine administrative forms notifying the public authorities of the birth of each child, and conferring on them the surname of Magill. In his evidence, the appellant did not seek to relate his belief in his paternity to the signing of the birth notification forms, or to any other particular words or conduct on the part of the respondent. It was the failure to disclose her extra-marital relations and their possible connection with her pregnancies that was the critical element in the deception. Yet, unless it can be said that there was then (that is, in effect, when the children were born) a legal or equitable duty to disclose the truth, her silence did not amount to a representation. After the marriage had broken down, and when the matter of child support payments arose, there may have been a duty of disclosure; but the appellant was not claiming to recover the child support payments, and the trial judge made no finding on that basis.
Although there was no direct challenge in this Court to the trial judge's conclusion as to fraudulent intent at the time of the signing of the birth notification forms, it may be remarked, in passing, that the evidence raised some serious questions, which were not the subject of detailed findings, about that issue. Indeed, it is not entirely clear what was found to be the respondent's state of belief, at the times when the forms were signed, concerning the paternity of each child. Even some years later, according to the evidence, she was referring in a diary to suspicions. At the trial, she said that she thought the man with whom she had been having extra-marital relations might have been the father of the second child, but she did not think he was the father of the third child. Because the matter was not raised as an issue between the parties until some years later, the respondent might not have attempted to resolve the question in her own mind, at the time of the signing of the birth notification forms. Her state of mind on the question of paternity, and the wisdom of revealing it, at the time of the birth of each child, may have been more complex than the reasons of the trial judge acknowledge. However, that is a topic that was not considered in any detail in argument in this Court.
Secondly, once it became clear that the making of the child support payments was not an aspect of the appellant's claim, the course of conduct, or change of position, in which he was induced to engage by reason of the (assumed) false representations of paternity made soon after the children were born appears to be that he remained in the marriage and accepted his wife's second and third children as his own. Although it was not made explicit, presumably underlying the appellant's claim is the suggestion that if, at the time of the birth of the second child, he had been made aware of his wife's infidelity and of the possibility that another man was the father of the child, he would have acted differently. In what way he would have acted differently is not clear.
Thirdly, there is the related question of damage. The appellant claimed, and was awarded, damages for two kinds of harm: personal injury, and pecuniary loss. Accepting that the evidence established recognisable psychiatric injury in the form of depression and anxiety, the explanation given by the appellant, and the finding made by the trial judge, as to the cause of that harm does not identify damage directly flowing from an alteration of the appellant's position occurring as a result of the inducement. His depression resulted from the distressing circumstances surrounding the breakdown of the marriage; distress that was exacerbated by his later discovery of the truth concerning his wife's extra-marital relations and the paternity of two of her three children. The appellant's claim for pecuniary loss took two forms. The first was consequential, and dependent, upon the claim for damages for personal injury. The second seems to have involved an attempt to show that, as a result of being misled into treating the second and third children as his own, the appellant devoted time to them that could have been used for more remunerative purposes, and outlaid moneys for their food, clothing and other necessities. Acting, at least for a few years, as the father of the two children cost the appellant money. The amount of the loss was not shown with any degree of cogency, and it is not possible, from the reasons of the trial judge, to see the extent to which it was reflected in the amount of $70,000 awarded by way of damages.
The Court of Appeal was right to conclude that the elements of actionable deceit were not made out. The case, however, was more fundamentally flawed, and the difficulties in relating the appellant's claim to the cause of action on which he sued were symptomatic of a more general problem which is likely to affect many such claims.
The bounds of the legal remedy
It has already been pointed out that, if a husband were to claim that he had suffered injury in consequence of careless misrepresentations made to him by his wife, whether they were representations about intimate matters, or whether they took the form of bad investment advice, the law would undertake a close examination of the circumstances in which the representations were made in order to see whether there was a legal duty of care. That is because, underlying the law of negligence, there is a conception of legal responsibility, based upon the idea of reasonableness, which reflects social conditions and standards[29]. Just as there are circumstances in which it is not reasonable to expect people to act under the threat of legal responsibility for carelessness, so there are circumstances in which personal relations are governed by ethical principles that do not contemplate, and may be incompatible with, legal responsibility and the risk of legal sanction. The law of tort imposes obligations, often regardless of any intention of the parties to enter into legal relations with one another. If a motorist injures a pedestrian, the motorist will not have intended to enter into legal relations with the pedestrian. Yet the act of driving a car on a public road is one that is generally understood to be attended with possible legal consequences, and the nature of the motorist's duty usually is uncomplicated by conflicting responsibilities. Underlying the legal remedy for deceit there is a duty of honesty, perhaps more general in its ordinary application than a duty to take care to avoid harming others. Yet the ethical content of the duty is never measured without regard to the context in which a party acts, and community standards do not require the imposition of legal consequences regardless of such context. For example, finding a false representation, made with fraudulent intent, in a marital context, or in the context of some other personal relationships, in certain circumstances may impute an obligation of disclosure, regardless of other interests and consequences, where none exists.
[29]Donoghue v Stevenson [1932] AC 562 at 619 per Lord Macmillan.
The matters which an individual party to a marriage might properly regard as intimate and private are not limited to questions of paternity of children of the marriage, or sexual fidelity, or to events that occurred during the marriage. Finding a duty to disclose the truth about some matters would be inconsistent with the ethical context in which such a judgment must be made. Furthermore, the problem goes beyond questions of disclosure. Imposing legal consequences upon behaviour in such a relationship also may be inconsistent with the subjective contemplation of the parties and with public policy as reflected in legislation. In that connection, the extensive scheme of regulation of the legal incidents of the marriage relationship contained in the Family Law Act, based as it is largely upon a policy of minimising the importance of questions of "fault", forms an important part of the setting in which judgments about dishonesty, and actionable damage, must be made. The application of the common law of deceit to marital relations is not impossible, and there are no rigidly defined zones of exclusion, but attempts to construct legal rights and obligations in an unsuitable environment should fail, as did this attempt.
Conclusion
The appeal should be dismissed with costs.
GUMMOW, KIRBY AND CRENNAN JJ. The Victorian Court of Appeal[30] allowed an appeal brought by the respondent in this Court, Meredith Jane Magill, against a judgment in the County Court of Victoria awarding damages against her at the suit of her former husband, Liam Neal Magill, the appellant in this Court. His claim was in deceit for false representations made by her as to the paternity of the second and third children born during the course of their marriage.
[30]Magill v Magill [2005] Aust Torts Reports ¶81-783. Eames JA delivered the leading judgment of the Court of Appeal, with Ormiston and Callaway JJA agreeing on the determinative issues.
The background
The issues of principle debated on the appeal to this Court require consideration of the proper scope in the common law of Australia for the tort of deceit in domestic relations, in particular where the dispute is between spouses and respects the paternity of a child apparently born of their marriage. In that sense, the issues here lie at the frontiers of tortious liability, as they did in Tame v New South Wales[31], Cattanach v Melchior[32] and Harriton (by her Tutor George Harriton) v Stephens[33]. The treatment by this Court of the issues presented on those appeals illustrates the wisdom, when placed at a frontier, of taking a vantage point to look back to the commencement of the legal journey and to what developed thereafter.
The tort of deceit in its modern form first appeared in England at the end of the 18th century. At that time, an action in tort of the nature of that between the present appellant and respondent would have been unthinkable for various reasons. First, no act committed by one spouse against the other during marriage could be a tort: the reason, affirmed as late as 1876, was the fundamental and general principle of the common law that spouses "are one person"[34]. In his dissenting judgment in Wright v Cedzich[35], Isaacs J spoke with evident approval of Bentham's criticism of the use of such a "quibble" as the "nonsensical reason" for legal propositions respecting the matrimonial condition.
[34]Phillips v Barnet (1876) 1 QBD 436 at 438, 440, 441.
[35](1930) 43 CLR 493 at 501.
Secondly, there was the long-standing common law presumption of legitimacy, of great importance at a time before modern legislation such as s 3 of the Status of Children Act 1974 (Vic)[36], and when legal rights, particularly of inheritance, depended upon the status of legitimacy. Lord Mansfield, when explaining in Goodright v Moss[37] why a parent could not give evidence the effect of which would be to bastardize a child, said[38]:
"As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule, founded in decency, morality, and policy, that they shall not be permitted to say after marriage, that they have had no connection, and therefore that the offspring is spurious; more especially the mother, who is the offending party."
[36]This provides for the relationship between children and their parents to be determined irrespective of any marriage between them, and for all other relationships to be determined accordingly. See also Status of Children Act 1974 (Tas), s 3; Family Relationships Act 1975 (SA), s 6; Children (Equality of Status) Act 1976 (NSW), s 6; Status of Children Act 1978 (Q), s 3; Status of Children Act 1978 (NT), s 4; Parentage Act 2004 (ACT), s 38.
[37](1777) 2 Cowp 591 [98 ER 1257].
[38](1777) 2 Cowp 591 at 594 [98 ER 1257 at 1258].
Statute has intervened. That part of the law of evidence is no more[39]. Nor is the common law principle respecting the single legal personality of spouses. Hence, it might be thought that there had been an expansion in the area for the operation of the tort of deceit beyond that which it occupied when it emerged in its modern form in Pasley v Freeman[40].
[39]Heydon, Cross on Evidence, 7th Aust ed (2004) at §25190.
[40](1789) 3 TR 51 [100 ER 450].
However, other things have remained constant. The law respecting domestic relations was heavily influenced in England by the ecclesiastical courts before 1857 and by the courts of equity. In both courts, much emphasis has been placed upon the importance of the trust and confidence between spouses and the delicacy of the married relationship[41], and more recently, courts of equity and courts more generally have also considered other adult, long-term, intimate, personal and sexual relationships[42].
[41]See the judgment of Brennan J in R v L (1991) 174 CLR 379 at 391‑393.
[42]Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 404 [21]-[22] per Gaudron, McHugh, Gummow and Hayne JJ, 432-433 [76] per Kirby J. See also Barclays Bank Plc v O'Brien [1994] 1 AC 180 at 198 and Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 at 38, 43, 50, 54.
The tort of deceit has had quite different origins and applications. The position is explained by Professor Fleming[43]:
"Deceit, as an independent and general cause of action in tort, is of relatively novel origin, although traces of it are encountered as early as the 13th century when a writ of that name became available against misuse of legal procedure for the purpose of swindling others[44]. Later this remedy expanded and played a modest part in developing the incipient law of contract, principally in connection with false warranties[45]. Its scope, however, remained confined to direct transactions between the parties until in 1789, in Pasley v Freeman[46], it was freed from this link with contractual relations and held to lie whenever one person, by a knowingly false statement, intentionally induced another to act upon it to his detriment. There, the plaintiff had made an inquiry from the defendant concerning the financial standing of a merchant with whom he was negotiating for the sale of 16 bags of cochineal and received the assurance that he could safely extend credit, although the defendant well knew the party to be insolvent. Despite the want of any contractual bargain with the plaintiff, the defendant was held to answer for the loss in an action for deceit. At about the same time, the remedy for breach of warranty was absorbed by the action of assumpsit and henceforth regarded as purely contractual[47]. Thereafter, the two theories of misrepresentation began to diverge and are now quite distinct. The tort action for deceit requires proof of fraudulent intent, while breach of contractual warranty became independent of any intention to mislead or other fault."
[43]The Law of Torts, 9th ed (1998) at 694‑695. See also Prosser and Keeton on the Law of Torts, 5th ed (1984) at 727‑729; Balkin and Davis, Law of Torts, 3rd ed (2004) at §23.14; Ames, "The History of Assumpsit", (1888) 2 Harvard Law Review 1 at 8-9.
[44]See Winfield, History of Conspiracy (1921) at Ch 2.
[45]Holdsworth, History of English Law, 5th ed (1942), vol 3 at 428ff.
[46](1789) 3 TR 51 [100 ER 450].
[47]Stuart v Wilkins (1778) 1 Doug 18 [99 ER 15].
The significance of the foregoing for the issues that arise on this appeal is apparent from the further observations by that learned author[48]:
"Nevertheless, the close association of deceit with bargaining transactions has inevitably coloured the elements of the action, which largely reflect the ethical and moral standards of the market place as they relate to permissible methods of obtaining contractual or other economic benefits and of inflicting pecuniary loss through reliance on false statements. Not that the action is inapplicable to personal injuries or harm to tangible property,[49] but such instances are rare, and the typical cases in which the action is enlisted involve pecuniary loss."
[48]Fleming, The Law of Torts, 9th ed (1998) at 695. See also Winfield and Jolowicz on Tort, 16th ed (2002) at 368.
[49]Langridge v Levy (1837) 2 M & W 519 [150 ER 863], affirmed 4 M & W 337 [150 ER 1459]; Burrows v Rhodes [1899] 1 QB 816; Nicholls v Taylor [1939] VLR 119.
An uncontroversial modern statement of the elements to be proved in an action in deceit is that appearing as follows in the latest edition of Clerk & Lindsell On Torts[50]:
"Where a defendant makes a false representation, knowing it to be untrue, or being reckless as whether it is true, and intends that the claimant should act in reliance on it, then in so far as the latter does so and suffers loss the defendant is liable for that loss."
[50]19th ed (2006) at 1081 [18-01] (footnote omitted).
That formulation no doubt was derived from the body of case law which followed Pasley v Freeman[51] and was of the character described by Professor Fleming. How well it applies at the frontier of liability with which this appeal is concerned is for the consideration which will follow in these reasons.
[51](1789) 3 TR 51 [100 ER 450].
However, something more first should be said of the facts and the conduct of the litigation.
The facts and the trial
The damages claimed by the husband included loss of earnings, loss of use of monies, damages for personal injury, namely severe anxiety and depression, and exemplary damages. The trial judge[52] found in favour of the husband and awarded him $70,000 in damages: $30,000 for general pain and suffering; $35,000 for past economic loss; and $5,000 for future economic loss.
[52]Magill v Magill, unreported, County Court of Victoria, 22 November 2002.
The facts are dealt with comprehensively by Eames JA in the reasons of the Court of Appeal[53] and for present purposes they can be summarised. The husband and wife were married in 1988. During the time they were married the wife gave birth to three children. The first child, a boy, was born on 7 April 1989 ("the first son"). The second child, also a boy, was born on 30 July 1990 ("the second son"). On 27 November 1991, the wife gave birth to a girl ("the daughter").
[53][2005] Aust Torts Reports ¶81-783 at 67,249ff.
The husband and wife separated in November 1992. Following the separation, the three children lived with the wife, and the husband was able to spend time with them on certain weekends, according to a mutually agreed access arrangement. The wife made an application for child support from the husband in late 1992 under the Child Support (Assessment) Act 1989 (Cth) ("the Child Support Act"). The husband generally made payments in accordance with the child support schedule, save for certain periods in 1996 and 1997.
Unbeknown to the husband, the wife had commenced an extra‑marital sexual relationship in September 1989. Contraception was not used. The wife had had suspicions concerning the paternity of the second son, and in 1993 these were strengthened as a result of her seeing a photograph of a child of the man with whom she had had the extra‑marital sexual relationship; the child bore a physical resemblance to the second son.
In 1995, after suffering a nervous breakdown, the wife informed the husband of her suspicion. DNA testing conducted by consent in 2000 established that the husband was neither the biological father of the second son, nor of the daughter.
After the paternity of the second son and the daughter had been determined, child support arrangements were adjusted, so that payments were calculated, and due, only in respect of the first son. As the husband had sufficient outstanding debt in respect of the first son as a result of his failure to meet payments in 1996 and 1997, he was not able to recover any amounts he had paid in respect of the second son and the daughter[54].
[54]Section 66X of the Family Law Act 1975 (Cth) provides for recovery of amounts paid under maintenance orders in circumstances such as the husband's here and applies retrospectively. This amendment commenced operation on 3 August 2005 and followed changes to parentage testing procedures. The child support arrangements for the three Magill children fell within the Child Support Act (ss 20 and 21) which contains a power for the Registrar to amend assessments (s 75) and a power for a court to make "such orders as it considers just and equitable" to effect the rights of the parties and the child (s 143(3)), and to recover payments of child support in respect of which there was no liability to pay (s 143(1)).
The husband commenced an action in deceit against the wife, in the County Court of Victoria in January 2001. The trial took place in November 2004, and the reasons of the trial judge were delivered, and the orders made, shortly after the conclusion of the hearing. The trial judge determined that the wife had made false statements about paternity, either knowing that they were false or without any belief in their truth, or recklessly, without caring whether they were true or not, and therefore without any genuine belief in their truth. Further, according to the trial judge, the husband had established that the wife intended the husband to rely on the false statements, that the husband actually did rely on them, and that he suffered damage as a result.
According to the husband, the representations that he was the father of the second son and the daughter were "partly written, partly oral and partly to be implied". The husband claimed the written representations were constituted, inter alia, by the completion and presentation of birth notification forms by the wife naming the husband as the father of the second son and the daughter. The husband submitted that oral representations were constituted by conversations between him and his wife, with respect to each child, to the effect that she was pregnant, and that he was the father of the unborn child. The husband further claimed that the representations were to be implied, given that the wife failed to disclose her extra-marital sexual relationship, and failed to correct his apprehension that he was the biological father of the second son and the daughter.
However the trial judge's reasons referred only to the written representations in the completed birth notification forms presented to the husband for signature by the wife soon after the birth of each child. Evidence relating to the oral or implied representations was not explicitly advanced as proof of separate and discrete instances of making or repeating the false representations[55].
[55][2005] Aust Torts Reports ¶81-783 at 67,253 [32].
The birth notification forms
In each of the birth notification forms in evidence, the name of the child was entered by the wife, and in the section entitled "FATHER" the wife entered the husband's name. Further down the page was a section entitled "PARENTS PREVIOUS CHILDREN". In the notification form for the second son, the name of the first son was entered in this section; and in the notification form for the daughter, the names of the first and second sons were entered.
At the bottom of the form for the daughter was a section entitled "DECLARATION BY MOTHER / INFORMANT". It was completed by the wife in the following way:
"I, Meredith Jane Magill request that the child be registered with the family name of Magill and certify that the above information is correct for the purpose of being inserted in the Register of Births and am aware that persons wilfully making or causing to be made a false statement concerning the particulars required to be registered shall on conviction be liable to the penalties of perjury."
Below this was a section entitled "DECLARATION BY FATHER", which, upon presentation by the wife to him, was signed by the husband below the words:
"I agree to be registered as the father of the child and that the family name of the child be Magill."
On the reverse of the form, the following Notes appear:
"NOTE 1 – CHILD
Family Name: (i) If a person is registered as the father of the child, the family name of the child should be entered as the same family name as the father …
NOTE 4 – FATHER
Where the parents are not married to each other, do not enter particulars of the father unless the form is being signed by both parents …
NOTE 5 – PARENTS PREVIOUS CHILDREN
Enter only details of children born to or adopted by both parents of the child being registered ..." (emphasis in original)
A form in similar terms was completed in relation to the second son after his birth.
The following exchange regarding the birth notification forms took place between the husband and his counsel at trial:
"Did she show you a birth certificate? - - - All three children were born in Sea Lake Hospital and at each birth upon discharge there's a form that is filled out regarding the birth of the particular child and that was done on all three occasions of the birth of our children.
Did you see that form? - - - Yes.
Who showed it to you? - - - Well, it was shown to both of us. [The wife] filled the form out on each occasion and — naming me as the father and I had no reason to believe otherwise so I signed the particular form."
When asked about whether her husband would consider each form (as filled in by her showing him as father) as an assertion of the truth, the wife replied,
"I don't think I really thought too hard about it at all, it was a birth registration."
In his reasons, the trial judge described the birth notification forms as the "most direct evidence" of the making of the alleged representations. His Honour stated:
"It seems to me to be impossible to conclude that [the wife] could have had any real belief in the assertion that she made, and in my view she must have known that [the husband] was not the father … At the very least, she has just been so reckless as to not have any genuine belief in the truth of the assertion at all, but nevertheless made it, intending it to be relied upon."
In awarding damages, the trial judge referred to the evidence of three doctors who had treated the husband for psychiatric disorders, which included depression and anxiety, which followed from the revelation of the "painful knowledge that two of his three children [for] whom he cares and loves … have turned out not to be his".
Of the wife's situation, his Honour said:
"[The wife] found herself in a position [in] which she [had] a choice between endeavouring to save her marriage or face the enormous uproar which undoubtedly would follow upon her making a truthful statement concerning her beliefs as to the paternity of her children. This solution to the problem of course is no solution at all, that is to lie about it, but I am not so much lacking in comprehension of human frailty that I would ignore and push past an understanding of the extreme difficulty which faced [the wife] when presented with the form to fill in concerning notification."
The Court of Appeal
In allowing the wife's appeal from the decision of the trial judge, both Ormiston and Callaway JJA noted that this was an "unusual case", fought on very narrow grounds[56], as the only representations to which the trial judge explicitly referred and which he tested against the elements of the cause of action in deceit were those representations described in the birth notification forms[57].
[56][2005] Aust Torts Reports ¶81-783 at 67,247 [1].
[57][2005] Aust Torts Reports ¶81-783 at 67,248 [3].
All members of the Court of Appeal assumed that the claim in deceit had been brought appropriately[58] and concentrated upon whether, on the facts of the case, the elements of the cause of action in deceit had been established.
[58]See, for example, [2005] Aust Torts Reports ¶81-783 at 67,257 [50] per Eames JA.
Callaway JA found that there was no evidence on which the trial judge could find that the wife intended the husband to rely on the birth notification forms for any purpose other than signing them and agreeing that the children should be registered with the family name of Magill[59]. Eames JA (with whom Ormiston JA agreed) determined that the only finding made by the trial judge concerned the representations in the birth notification forms[60] and further stated[61]:
"The [husband] did not give evidence that the completion of the forms induced him to do anything. Rather, his evidence was that it was his belief that he was the father that caused him to provide the financial and emotional support for the children, and that his belief in that respect was based on the whole situation of being in a marriage and his ignorance that his wife was conducting an affair. He said that had he known their paternity he would not have maintained the two children, but that evidence was not related to reliance by him on the contents of the forms.
In my view, therefore, there was no evidence that the [husband] acted in reliance on the representations in the forms, save (by inference) with respect to the naming of the children."
[59][2005] Aust Torts Reports ¶81-783 at 67,248 [6].
[60][2005] Aust Torts Reports ¶81-783 at 67,255 [39].
[61][2005] Aust Torts Reports ¶81-783 at 67,262 [82]-[83].
The Court of Appeal noted that of the $35,000 awarded by the trial judge for the husband's economic losses, the trial judge had awarded $10,000 for time taken off work after the births of each of the two children, and $25,000 was for "expenses incurred for the two children over the many years before their paternity was resolved"[62]. It was also noted that the trial judge had expressly stated that he was not, in effect, refunding or adjusting child support payments[63].
[62][2005] Aust Torts Reports ¶81-783 at 67,264 [100].
[63][2005] Aust Torts Reports ¶81-783 at 67,264 [100].
The appeal to this Court
In this Court, by her Notice of Contention, the wife submitted that the Court of Appeal erred in concluding that the tort of deceit extended to claims for damages arising from false representations as to the paternity of children conceived and born during the course of a marriage.
Arguments regarding the scope and constitutionality of ss 119 (abolishing spousal immunity in tort) and 120 (abolishing actions for "damages for adultery") of the Family Law Act 1975 (Cth) ("the Family Law Act") were also raised in that context. The Attorney-General of the Commonwealth intervened and submitted that ss 119 and 120 were valid and supported the interpretation of the sections advanced by the husband, which will be considered in more detail later.
In the reasons which follow, the conclusions will be reached that an action for deceit between spouses is not excluded by the provisions of ss 119 and 120 of the Family Law Act and that, while an action for deceit may be maintainable between spouses or former spouses in certain circumstances[64], the tort does not apply to false representations made during the course of a marriage about an extra-marital sexual relationship or paternity.
[64]For example, where one spouse has induced another by fraud to enter a contract or dispose of property.
This is for two reasons. First, speaking broadly, the Parliament has passed legislation governing the dissolution of marriage in which the determination of fault between spouses, including inquiry into their extra-marital sexual conduct, is no longer the province of the law. At the same time, in step with scientific developments, the relevant legislation facilitates accurate determination of paternity and permits the recovery of amounts wrongly paid for child support. The legislation is federal and thus applies throughout the Commonwealth. The common law of Australia in a field appropriate for further development after that legislation ought not to proceed on a divergent course[65].
[65]Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 62‑63 [24]-[25]; cf at 89-90 [105].
Secondly, conduct which constitutes a breach of promise of sexual fidelity and any consequential false representation about paternity, occurring within a continuing sexual relationship, which is personal, private and intimate, cannot be justly or appropriately assessed by reference to bargaining transactions, with which the tort of deceit is typically associated.
These conclusions will result in the dismissal of the appeal and make it unnecessary to determine other matters which were the subject of submissions.
Submissions
In argument, both parties dealt with the question in terms of whether or not there should be "an exception" to the application of the law of deceit, in the circumstances of this case. That treatment of the question reflected the course of the argument in an English case, P v B (Paternity: Damages for Deceit)[66]. However, what has already been said in these reasons shows that what is at stake is not the creation of "an exception" to the established principles or of a "control mechanism" upon their operation. Rather, the appeal calls for a decision as to whether the action for deceit should run at all in circumstances where in previous times it could not have done so.
[66][2001] 1 FLR 1041.
The husband submitted that there should be no exclusion, or non‑application, of the law of deceit in respect of the wife's liability based on the fact that the false representations concerned the paternity of two children born during their marriage were made during the course of the marriage, and he relied on P v B (Paternity: Damages for Deceit), which has been characterised as confirming the general application of the principle encapsulated by the tort[67]. He relied also on the plain and literal meaning of ss 119 and 120 of the Family Law Act, the text of which shall be referred to later in these reasons. Calling in aid examples of judicial reasoning from other jurisdictions, the husband argued that public policy considerations which were animated by concern for the welfare of children should not bar his action.
[67]Clerk & Lindsell On Torts, 19th ed (2006) at 1081 [18-01].
The wife submitted that a cause of action in deceit was generally relied on when a remedy was sought in respect of pecuniary losses arising from inducement to lay out money or enter a contract. It was conceded that examples could be found where deceit founded a remedy in a context which was not commercial[68] including where deceit caused physical injury, specifically nervous shock[69]. It was next submitted that a false representation made during the course of a marriage should be treated differently from a false representation made in a commercial context, just as agreements between spouses were not normally treated as creating legal relations[70]. The wife also contended that an action for deceit was not apt in a continuing marital relationship because of the difficulty of establishing the requisite elements, as happened here with the element of reliance, a matter to which these reasons will return.
[68]See, for example, Burrows v Rhodes [1899] 1 QB 816.
[69]Wilkinson v Downton [1897] 2 QB 57; Janvier v Sweeney [1919] 2 KB 316.
[70]Balfour v Balfour [1919] 2 KB 571; Cohen v Cohen (1929) 42 CLR 91; Jones v Padavatton [1969] 1 WLR 328; [1969] 2 All ER 616.
Further the wife questioned the social utility of allowing such an action when that course is weighed against the potential for damage to families and children. She also submitted that the family law regime provided for the recovery of maintenance that has been paid without legal obligation, and that it does so without allocating blame, so it was unnecessary to rely on the tort of deceit to do justice between the parties[71]. Then it was argued that the novel reliance on an action for deceit, as here, would not have been within contemplation when s 119 of the Family Law Act was drafted; that s 119 should be read down to exclude deceit of the kind alleged here; and that ss 119 and 120, read together, exclude tortious claims inconsistent with the exercise of jurisdiction and powers provided for in the Family Law Act. The wife also relied on public policy considerations, telling against recognising an action for deceit as sought here, as adverted to in a number of decisions elsewhere; these decisions will be considered later in these reasons. It is convenient to start with a consideration of the arguments concerning ss 119 and 120 of the Family Law Act.
Sections 119 and 120 of the Family Law Act
[71]Child Support Act, s 143(3).
Section 119 provides:
"Either party to a marriage may bring proceedings in contract or in tort against the other party."
The effect of s 119 is to abrogate rules applied at common law which flowed from the common law premise that husband and wife were one, to which reference has been made earlier in these reasons. The premise included a claim for a tort committed by one spouse against the other during or before the marriage. This spousal immunity from tortious claims has been progressively abrogated in Australia[72] (following earlier legislation enacted in the United Kingdom[73]). The Commonwealth submitted that there is nothing on the face of s 119 (or to be found in the relevant extrinsic material) which suggests there is a continuing spousal immunity in relation to some torts, specifically deceit, and not others. This submission is correct and must be accepted. The plain terms of the section would permit actions brought in respect of disparate intentional torts, for example trespass to the person, or deceit in the context of contractual negotiations. However, the conclusion that s 119 allows the possibility that an action for deceit now lies between spouses is inconclusive of the outcome in this case. Section 119 does not compel any conclusion that the common law must now be developed to permit recovery by the appellant in the novel way he claims.
[72]See Married Persons (Equality of Status) Act 1996 (NSW); Law Reform (Husband and Wife) Act 1968 (Q); Statutes Amendment (Law of Property and Wrongs) Act 1972 (SA); Married Women's Property Act 1965 (Tas); Marriage (Liability in Tort) Act 1968 (Vic); Law Reform (Miscellaneous Provisions) Act 1941 (WA); Married Persons (Torts) Ordinance (ACT); Married Persons (Torts) Ordinance (NT). Finally, see s 119 of the Family Law Act.
[73]Law Reform (Husband and Wife) Act 1962 (UK).
Section 120 of the Family Law Act states:
"After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage."
The wife submitted that s 120 prevented the husband's claim because the phrase "damages for adultery" encompassed the deceit relied on in this case; the husband rejected this construction. The Commonwealth supported the husband's construction and submitted that each of the three causes of action abolished by s 120 were once brought by an injured party against third parties, and in particular "damages for adultery" refers to a former statutory cause of action against a co-respondent[74]. These submissions are also plainly correct and must be accepted.
[74]Matrimonial Causes Act 1959 (Cth), s 44.
However, s 120 does not stand in isolation. It is consonant with the entire thrust, theoretical underpinning and overall legislative purpose, of the Family Law Act, which constituted a radical alteration to the basis of family law legislation as previously enacted. The goal was to remove provisions for divorce based on fault which involved the allocation of blame and "indignity and humiliation to the parties because of the inquiry into fault"[75]. It was for that reason that the 14 grounds for divorce contained in the preceding Matrimonial Causes Act 1959 (Cth) (which included adultery[76]) and the four grounds of voidability (which included the wife being pregnant by a person other than the husband[77]), were all reduced to a single ground for the dissolution of marriage, namely "that the marriage has broken down irretrievably"[78]. It can be noted in passing that decrees of nullity can be obtained if a marriage is void[79].
[75]See the Second Reading Speech for the Family Law Bill 1974: Australia, Senate, Parliamentary Debates (Hansard) 3 April 1974 at 641. See also the Second Reading Speech for the Family Law Bill 1973: Australia, Senate, Parliamentary Debates (Hansard) 13 December 1973 at 2827-2833.
[76]Matrimonial Causes Act 1959 (Cth), s 28(a). The Divorce and Matrimonial Causes Act 1857 (UK) which first permitted the dissolution of marriage on the basis of fault, contained the grounds of adultery, cruelty or desertion without cause (s 16).
[77]Matrimonial Causes Act 1959 (Cth), s 21(1)(d).
[78]Family Law Act, s 48(1).
[79]See Family Law Act, s 51, read in conjunction with the Marriage Act 1961 (Cth), as amended, s 23.
Further, the principles to be applied under the current legislation premised on "no-fault" divorce are set out in s 43 of the Family Law Act as follows:
"The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:
(a)the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children[[80]];
(c)the need to protect the rights of children and to promote their welfare;
(ca) the need to ensure safety from family violence; and
(d)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children."
[80]This provision derives from Art 23 of the International Covenant on Civil and Political Rights. See also Australia, Senate, Parliamentary Debates (Hansard), 3 April 1974 at 640-641.
The differences between the current family law provisions dealing with family breakdown and earlier provisions reflect profound social changes. No longer does a paterfamilias hold a "commanding position"[81], husbands and wives are treated as equal, divorce is not dependent on findings of marital fault, and actions for any solace in respect of sexual infidelity have been abrogated.
[81]Fleming, The Law of Torts, 9th ed (1998) at 718.
Further, although interspousal immunity was once justified on the ground that litigation between spouses was "unseemly, distressing and embittering", that justification has ceased to appeal to legislatures. For courts to revive the proposition as a justification for not recognising the tort of deceit in relation to paternity between spouses is to substitute their view of public policy for that acted on by legislatures.
Turning to the issue of damage to the children in particular, a majority of this Court in Cattanach v Melchior[238] permitted recovery of damages for the upbringing of a child notwithstanding the fact that recovery related to complex human relationships operating in a domestic context. It did so in the face of arguments that there was potentiality for an adverse impact on the child if it ever discovered that it was not wanted at the moment of its conception. In the view of the majority, it was necessary to make "hard choices", and not simply repeat "broad statements"[239] involving "speculation as to possible psychological harm to children"[240] which were "unconvincing"[241] or trivial: "there are many harsher truths which children have to confront in growing up"[242]. Arguments based on damage to children having failed in that case, it is difficult to see how they can be accepted in this appeal.
[238](2003) 215 CLR 1.
[239]Cattanach v Melchior (2003) 215 CLR 1 at 28 [56] per McHugh and Gummow JJ.
[240]Cattanach v Melchior (2003) 215 CLR 1 at 36 [79] per McHugh and Gummow JJ.
[241]Cattanach v Melchior (2003) 215 CLR 1 at 56 [145] per Kirby J.
[242]Cattanach v Melchior (2003) 215 CLR 1 at 108 [301] per Callinan J.
Child support as damage. The wife argued that to permit a father to recover damages from a mother by reason of her deceit about the paternity of her child is unacceptably to treat the birth of a child as a form of damage. That is an appeal to some of the minority reasoning in Cattanach v Melchior[243]. The fundamental difficulty in the argument is, again, that the majority rejected the minority view. The minority reasoning cannot in these circumstances be followed.
[243](2003) 215 CLR 1.
Loss of opportunity to make a crucial choice. In some respects the family context, and the complexities of the relationships involved, point more towards the desirability of tortious liability applying than against it. A husband who thinks he is a father does more than provide material support for the child: typically he endeavours to love it, to build an emotional bond with it, to ready it for life in the years ahead in a hostile world in the way he judges best – because it is his child. A husband may behave in the same way towards a child of his wife's whom he does not believe he fathered, but he has a choice whether or not to do so. If a lie affects the choice a husband makes to support a child born to his wife financially and in every other way, he has lost the chance to make an informed choice about his own role in relation to the child. Provided the husband can prove damage and the other elements of deceit, it is not startling that the law should attach adverse financial consequences to the conduct of a person responsible for a lie which can so radically affect the husband's life.
American cases: constitutional right of privacy. The American authorities frequently cite Stephen K v Roni L[244]. In that case a man alleged that in reliance on the mother's representation that she was taking contraceptive pills he engaged in intercourse with her, resulting in the birth of a child. The action was held not maintainable: the claim arose from conduct of so "highly intimate" a nature and "so intensely private that the courts should not be asked to nor attempt to resolve such claims"[245]. To allow it "would encourage unwarranted governmental intrusion into matters affecting the individual's right to privacy"[246]. This reliance on constitutional doctrines not known to Australian law casts a shadow over the applicability in Australia of the reasoning in the American cases generally.
[244]105 Cal App 3d 640; 164 Cal Rptr 618 (Cal App 2 Dist, 1980).
[245]105 Cal App 3d 640 at 643; 164 Cal Rptr 618 at 619 (Cal App 2 Dist, 1980).
[246]105 Cal App 3d 640 at 645; 164 Cal Rptr 618 at 620 (Cal App 2 Dist, 1980).
American cases: recovery by women for sexual deceit. The wife in this appeal was evidently prepared to allow for the possibility of some actions in deceit in relation to intimate sexual matters; certainly the notice of contention did, since the restriction stated in it was limited to "damages arising from the paternity of children". It was acknowledged that there have been cases in which actions in deceit have been approved. One authority approved an action in deceit by a woman who alleged that her attorney, to whom she was not married, had rendered her pregnant after intercourse in reliance on his knowingly false representation that he was sterile, with the woman suffering an ectopic pregnancy and being forced to undergo surgery to save her life. Another approved an action in deceit by a woman who contracted a venereal disease after having intercourse with a man in reliance on his misrepresentation that he was free of venereal disease. These cases have been distinguished on the basis that they both involved the plaintiff suffering personal injury and that the litigation had no potential for harming children[247]; the wife in this appeal placed reliance on the case drawing this distinction. While a distinction between recovering for "physical" injury and non-recovery for hurt feelings caused by betrayal is intelligible, a distinction between "physical" injury and mental disorder caused by deceit is much less sound[248]. Further, if in each case the parties were married with children, there would, on the wife's general approach, be a risk of harm to the children; would that risk in these circumstances debar the plaintiffs from relief?
[247]Richard P v Gerald B 202 Cal App 3d 1089 at 1094-1095; 249 Cal Rptr 246 at 250 (Cal App 1 Dist, 1988).
[248]See generally Tame v New South Wales (2002) 211 CLR 317.
Anomalies and injustices. The wife's contention that the tort of deceit does not extend to claims for damages by husbands against wives arising from the paternity of children conceived and born during the marriage stops short of considering whether other forms of paternity fraud are actionable. The wife submitted that the Court should confine itself to deciding the law for the particular category of circumstances illustrated by this case. Often submissions of that kind are powerful. However, the present controversy is an example of controversies which are difficult to decide without considering related, though different, factual circumstances.
What if a child is conceived, not during the marriage, but before marriage, and the marriage takes place on the knowingly false representation of the mother that the husband is the father? There is American authority that the husband has a good cause of action in deceit[249]. There is no reason to doubt that that is so in Australian law too, and the wife accepted this. Yet if the action lies, it lies in the face of many of the difficulties said to prevent actions between spouses based on fraudulent representations about the paternity of children conceived and born during their marriage. There are complex human relationships involved; proof depends on a contest of oath and oath; arguably the interests of the child may be injured when it learns of the litigation. What if a child is conceived before the marriage, and after the marriage takes place – or after it is terminated – the wife commits paternity fraud? The circumstances fall outside the wife's second proposition in the notice of contention. It would be bizarre if the wife were liable in those circumstances but not in the circumstances of this case. It is hard to see why a wife should not be liable for post-marriage paternity fraud: the complex human relationships are over; if children are to be injured, they will already have been injured.
[249]Miller v Miller 956 P 2d 887 (SC Okla, 1998).
If a husband's female friend gives birth to a child and falsely represents to the wife that the husband is not the father in such a way that the ingredients of deceit are made out, why does an action not lie for that tort by the wife against the female friend? If it does, similar difficulties to those relied on by the wife in this case exist.
If an action by the wife lies against the female friend, why would an action by the wife not lie against the husband if it were he who made the fraudulent misrepresentation?
If an unmarried woman living with a man gives birth to a child and falsely tells him he is the father, will an action lie? There is no policy inhibition to be inferred from the now-abolished common law rule against spouses giving evidence bastardising children or the now-abolished common law rule of interspousal immunity. It is hard to see why the action should not lie; again, if it does, it lies despite the factors supposedly pointing against interspousal litigation for paternity fraud. The wife contended that no action for paternity fraud lay in any "continuing relationship"[250], but did not deal with how that expression might be defined.
[250]The wife put no argument that any such action would be inconsistent with State and Territorial statutory schemes which operate when de facto relationships break down corresponding with the arguments she put, considered below at [232]-[238], that actions for paternity fraud undermine the Family Law Act and the Child Support Act.
If an unmarried woman gives birth to a child and falsely tells a man with whom she had a single casual sexual encounter that he is the father, will an action lie?
Assume that a grandfather, on being told that his son and daughter-in-law cannot pay for the education of their child, agrees to pay for the education on the faith of a knowingly false representation by either the son or the daughter-in-law that the son is the father. Does an action in deceit lie?
If a stranger to the marriage says that the wife's children were not fathered by her husband, can she sue him in defamation? If so, can the stranger justify? If the husband says that the wife's children were not fathered by him, can the wife sue him in defamation?
If there are legal principles preventing actions for paternity fraud between spouses, they may apply to prevent actions for paternity fraud between unmarried men and women, and indeed fraud of all kinds other than paternity fraud between unmarried men and women – even between non-heterosexual couples.
To accept the wife's submissions in this case, but to limit the refusal of the law to allow paternity fraud litigation to the narrow area of litigation between husband and wife about the paternity of children conceived and born during the marriage, would create innumerable anomalies. On the other hand, to accept the wife's submissions, but to extend them to many other kinds of paternity fraud, and non-paternity fraud, would create innumerable injustices.
Conclusion. The tort of deceit may have had a limited range of practical applications in the past, but it has long been stated in general terms as, in the words of Viscount Haldane LC, a duty of universal obligation. The common law rule that no spouse could give evidence bastardising the child of a marriage remained until legislation abolished it. But the common law rule was a prohibition on a particular type of testimony: it did not alter the duties created by the substantive law. Similarly, although no spouse could sue another spouse until legislation abolished that incapacity, the incapacity was an immunity from suit, not an immunity from duty. As Cardozo CJ said[251]: "A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity." The immunity of a negligent driver from being sued for damage he caused his wife, a passenger, could not be relied on by the owner for whom the husband was acting as servant or agent[252]. The immunity of a negligent employee from being sued for damage he caused to his wife, a co-employee, could not be relied on by the employer[253]. The testimonial prohibition and the immunity from suit having been removed, an action for the tort of deceit, like an action for any other tort, is available to one spouse to the natural extent of the language in which the tort has traditionally been expressed.
[251]Schubert v August Schubert Wagon Co 249 NY 253 at 256-257 (NYCA, 1928).
[252]Waugh v Waugh (1950) 50 SR (NSW) 210.
[253]Broom v Morgan [1953] 1 QB 597 at 604, 607 per Singleton LJ, 609-610 per Denning LJ.
Inconsistency of deceit with legislative regime: the wife's submissions
The wife then put various submissions on the assumption that, but for the Family Law Act and the Child Support Act, an action of deceit for paternity fraud could lie. She submitted that the availability of actions for deceit for paternity fraud would so undermine those statutory regimes that Parliament cannot have intended to permit the survival of the tort. She submitted that it was not necessary to extend the tort of deceit to paternity fraud because justice between the parties was better achieved under those Acts, which were both fully capable of dealing with false representations about paternity. She submitted that because the tort of deceit "focuses on an isolated act or incident within the context of the entirety of a marriage relationship – with all its complexities and rights and wrongs – it is unlikely to do justice between the parties in the way that the multi-factored approach required by the [Family Law Act] can."
The wife drew attention to four aspects of the legislation – those relating to property orders, spousal maintenance orders, financial agreements and child support.
Property orders. Section 79(1) of the Family Law Act gives the court power to make orders altering the property interests of spouses. Section 79(4) requires various factors to be considered, including any child support provided or to be provided under the Child Support Act; the "contribution" of the parties; and matters listed in s 75(2). Among the matters listed in s 75(2) are matters relating to child support, and "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account": s 75(2)(o). The wife submitted that the birth of a child whose father was a man other than the husband could be a negative "contribution" under s 79(4) or a "fact or circumstance" under s 75(2)(o) relevant to an adjustment of the property distribution in favour of the husband. And if the true paternity was discovered after s 79 orders were made, they could be set aside or varied under s 79A(1)(a) if the court is satisfied that "there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance".
Spousal maintenance orders. Section 72(1) provides that a party to a marriage is liable to maintain the other party, to the extent to which the first party is reasonably able to do so, if, and only if, that other party is unable to support himself or herself adequately for one of three reasons, of which the third is "any other adequate reason", having regard to any relevant matter referred to in s 75(2). Several of the matters referred to in s 75(2) relate to child support, and the terms of s 75(2)(o) have already been quoted. The wife submitted that if the husband were not the father of his spouse's child that could be taken into account under s 75(2). The wife also submitted that even if the actual paternity of a child were not known until after a spousal maintenance order had been made, the order could be modified (s 83(1)) by reason of a change of circumstances (s 83(2)(a)) or by reason of the fact that "material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false": s 83(2)(c).
Financial agreements. Section 90D provides that the parties to a former marriage may determine questions of property and maintenance by making a "financial agreement". Section 90K permits the court to set aside a financial agreement if the court is satisfied of one of various matters. One is that "the agreement was obtained by fraud (including non-disclosure of a material matter)": s 90K(1)(a). Another is that there has been "a material change in circumstances ... relating to the care, welfare and development of a child of the marriage": s 90K(1)(d). Another is that "in respect of the making of a financial agreement – a party to the agreement engaged in conduct that was, in all the circumstances, unconscionable": s 90K(1)(e). The wife submitted that this language was sufficiently broad to permit a court to set aside a financial agreement made in circumstances where the true paternity of a child had been known but not disclosed.
Child support. The wife submitted that the Child Support Act lays down a comprehensive scheme for the payment of child support by a biological parent. It also provides for the cessation of payments by a man who thought he was, but in fact was not, the father; and for the recovery of payments already made by that man in a court of competent jurisdiction (s 143).
General. The wife concluded by making the following two submissions. First, depending on the size of the asset pool to be divided between the spouses, allowing an action for deceit might produce a radically different result from that achieved under the Family Law Act. Secondly, a husband dissatisfied with the outcome under the Family Law Act might seek to do better by commencing an action in deceit for paternity fraud, and re-litigating issues already litigated under the Family Law Act. If successful, that could lead to a shifting of resources away from the mother, who will have the care of children for whom the husband will have no financial responsibility under the Child Support Act. That would in turn be damaging to the interests of the children.
Inconsistency of deceit with legislative regime? Conclusions
The present controversy is unconnected with any concrete dispute about the operation of the Family Law Act or the Child Support Act. It is therefore not desirable to decide whether the arguments advanced by the wife rest on sound assumptions about the meaning of the legislation. The argument of inconsistency is to be rejected on the following grounds.
Self-contradiction. There was an element of self-contradiction in these submissions. Either the Family Law Act regime is capable of accommodating fully the complaints of a husband who has been the victim of paternity fraud, or it is not. If it is, it is difficult to see how it can be said that allowing an action for deceit will produce a radically different result from that which is achievable under the Family Law Act. If it is not, then the contention that the Family Law Act regime renders an action of deceit unnecessary is baseless, and the contention that the statutory regime would be "undermined" if a husband could sue in deceit would be met by the retort that undermining would be a consequence to be accepted with equanimity, provided that the legislation did not actually forbid the action. In truth, the financial obligations which may arise between parties to a marriage under the Family Law Act are narrower than those which may arise in consequence of the tort of deceit in at least one respect: damages for that tort may extend to a wider range of loss and damage.
Recovery of payments by non-father. That last point is illustrated by the provision which the legislation makes for recovery of payments made by a non-father. A husband who is not the biological or adoptive father has no obligations under the Child Support Act; by reason of s 143, he has only rights to be repaid whatever he ought not to have paid. And s 66X of the Family Law Act permits recovery by a man (inter alia) who has complied with an order under s 66P(1)(a)-(b) to pay money by way of child maintenance, or an order under s 66P(1)(c) to make a transfer of property by way of child maintenance of what has been paid or transferred, if a court has determined that the man is not the parent of the child. To these provisions may be added the provisions to which the wife's submissions pointed, if they are sound, as permitting variations of property orders, spousal maintenance orders and financial agreements made on the erroneous assumption that the husband was the biological father of the child. But these provisions deal only with adjustments in the light of monies paid or promised to be paid, or property transferred or promised to be transferred in order to allow for the maintenance of children – not with damages beyond that.
An imperfect analogy. One of the authorities relied on by the wife in support of the proposition that an action in deceit for paternity fraud is inconsistent with the legislative regime was a decision of the Court of Appeals of New Mexico denying the claim of a de facto husband to relief against the de facto wife for the costs of rearing a child which, he alleged, would not have been born but for her deceitful representation that she was using contraceptive pills. One reason was that it would be "difficult to harmonize the legislative concerns for the child, reflected in the immutable duty of parental support"[254], with the father's attempt to shift financial responsibility solely to the mother. The reasoning related to that problem is distinguishable from the present case. In each case the question is what impact legislation compelling fathers to support their children has on a common law claim by a de jure or de facto husband in deceit. But in the New Mexico case the common law claim is by a father; in the present case the common law claim is by a non-father. Legislation about the duty of fathers to support their children does not of itself speak to the question of what rights a non-father has.
[254]Wallis v Smith 22 P 3d 682 at 684 (NMCA, 2001). See also Douglas R v Suzanne M 127 Misc 2d 745; 487 NYS 2d 244 (SCNY, 1985).
The terms of the legislation and the tort relied on. The wife's arguments relied on an analogy with a decision of the Supreme Court of Canada, Frame v Smith[255]. That Court declined the invitation of a former husband to recognise a new tort of interference with his legal right of access to his children, and to extend the tort of conspiracy into a new field – the conduct of the former wife and her present husband in preventing the plaintiff from exercising his legal rights to access. The Court took these approaches largely because it saw the matter as being dealt with in a comprehensive fashion by a particular statute, and held that so far as there were relevant remedies at common law they had been abolished by other legislation[256]. Further, the Court considered that the tort of conspiracy was so anomalous as not to justify its extension to family law[257]. The conclusions to be drawn from this kind of analysis depend, obviously, both on the legislation to be construed and the torts which it is said to limit. Reasoning which may be sound in dealing with very specific legislation about access to children, to which no existing tort applied, is not necessarily sound in dealing with less specific legislation that says nothing about a well-established general tort such as deceit. Similarly, reasoning which declines to create or extend torts which are relied on in order to enforce court orders for post-divorce access made in reliance on legislation is not necessarily applicable to the question whether, without the plaintiff having to rely on any legislation, a well-established general tort such as deceit applies to the pre-divorce conduct of the parties.
[255][1987] 2 SCR 99.
[256][1987] 2 SCR 99 at 111-114 per Dickson CJ, Beetz, McIntyre, Lamer and La Forest JJ.
[257][1987] 2 SCR 99 at 109 per Dickson CJ, Beetz, McIntyre, Lamer and La Forest JJ, 123-127 per Wilson J.
Second bite at the cherry? It is hard to criticise a husband, who was unaware of the fact of paternity fraud until after Family Law Act proceedings in relation to maintenance and property are over and who has been damaged, from wishing to claim compensation for that damage when he does learn of the fraud. Those are not circumstances pointing towards a statutory limitation on the tort of deceit. That this is so is supported by the fact that so far as the Family Law Act permits orders to be reopened, on the wife's arguments of construction, if they are sound, there are avenues in that Act for use by such a husband. On the other hand, a husband who was aware of the fact that he had a cause of action in deceit but who failed to raise it in the divorce proceedings either in its own right or in one of the ways which, according to the wife, the Family Law Act permits, would not deserve sympathy. Any proceeding by a husband in that position attempting a second bite at the cherry would be open to dismissal as an abuse of process[258]. The possibility of such an attempt is not an argument against husbands who are not engaged in such an attempt being able to sue.
Compatibility of legislative regime with common law. While courts must obviously give full effect to legislation which abolishes common law rules, or which, to avoid doubt, provides that they do not exist, and while some statutory schemes have the effect of abolishing common law rules because of their nature and structure, normally legislation, even complex legislation, will be treated as co-existing with earlier rules of the general law. No-one contends that the tort of deceit does not apply to trade or commerce on the ground that many provisions of the Trade Practices Act 1974 (Cth), and the Fair Trading Acts of all the States and Territories, attract wide-ranging remedies, and to some extent criminal sanctions, for conduct in trade or commerce which is misleading or deceptive and for many different categories of misrepresentations. No-one doubts that the general law duties of company directors survive, and operate congruently with, companies legislation like the Corporations Act 2001 (Cth). No-one doubts that the general law of tort in relation to driving cars, or running factories, or operating mines, coexists with statutory enactments about those activities. The same is true of the application of the general law of tort to trade union officials, despite legislation about industrial relations. In all these instances, and similar instances, statute law can modify the general law, but in the absence of clear language doing so, the two bodies of law operate in tandem. The wife pointed to no particular language modifying the law relating to deceit in its application to paternity fraud, nor to any particular language suggesting that the legislation covered the field. Beneath the surface of the wife's submissions there perhaps lay a suggestion that there was inconsistency between a legislative regime permitting couples to divorce without "fault" being proved, and the survival of a common law rule permitting recovery of damages where the integers of deceit, one of which requires proof of a type of fault, are established. There is no inconsistency. The legislative regime produces one result without any need to prove any "fault" or tort; the common law rule produces another, not inconsistent, result for conduct which is tortious and which requires, inter alia, both a type of "fault" and consequential damage.
Superiority of legislative remedial armoury. It may be true that complex statutory regimes like the Family Law Act, giving the courts powers more extensive than they have under the general law, may be more capable of achieving a just outcome in disputes between the parties – just as may be the case in relation to trade practices legislation and companies legislation, for example. But it does not follow from the fact that common law relief has greater bluntness that it does not exist.
Adverse to interests of children? The wife argued that paternity fraud actions would be adverse to the best interests of the children on the ground that the greater the husband's recovery, the fewer the assets the wife will have to bring the children up on. Among the typical factual circumstances postulated by the wife's argument are that the wife has borne a child not fathered by the husband, that that child, being incapable of supporting itself, is dependent on its mother, and that in consequence the mother is incapable of supporting herself adequately. Either these factual circumstances can be taken fully into account in assessing the maintenance orders to be made in favour of the wife or they cannot. If they can, rather than paternity fraud actions being financially injurious to the children, it is probably the case that paternity fraud actions are likely to be deterred by the fact that the greater the recovery for the husband, the greater may be his liability to adverse orders under the Family Law Act. If they cannot, the position is no different from that which applies in general litigation where the fact that success for the plaintiff may damage the economic capacity of the defendant to nurture the defendant's children is irrelevant.
Changes in the legislation. If the tort of deceit applied in Victoria to paternity fraud by wives or husbands in the sense that before 1968 there was a duty to abstain from that type of fraud, subject to an immunity from action for breach of the duty, and the enactment of a provision effecting the removal of that immunity in 1968 permitted the tort to be sued on, it was a tort which predated the introduction in 1975 of an equivalent Commonwealth provision effecting the removal of the immunity, namely s 119 of the Family Law Act. On that basis the inquiry would be into whether the Family Law Act, or the Child Support Act, abolished that tort, and if so when. The position is complicated by the fact that many of the provisions relied on by the wife wholly or partly post-dated 1975. Thus ss 72, 74, 75 and 79 of the Family Law Act were not in their present form in 1975. Section 79A was introduced in 1976 and has been much amended. Section 90D was not introduced until 2000. The Child Support Act was not introduced until 1989. Other provisions of the Family Law Act which were discussed in argument were also introduced well after 1975 – s 66P (introduced in 1987, repealed and substituted in 1995 and amended in 1999), s 66X (2005), s 69P (1995), s 69R (1995), ss 69U-69V (1995), s 69VA (2000), and ss 69W-69X (1995). Some of those provisions were introduced after a time when proof of paternity became easier. The fact that paternity is now easier to prove and the fact that legislation has been introduced to reflect this (all of it post-dating the proffering of the forms said to constitute the wife's torts in this case, in 1990 and 1992) does not establish a general legislative regime or a specific legislative intention inconsistent with the application of the tort of deceit to paternity fraud. But, quite apart from that point, the wife's argument did not devote attention to the question whether the application of the tort of deceit to paternity fraud was to be denied because of the condition of the legislation in 1975, or at some later date.
Absence of precise provisions. However, the fundamental difficulty is a difficulty raised by the statutory language. In ss 119 and 120 Parliament showed that it was capable of dealing clearly and decisively with problems arising out of the interrelationship of tort law and family dealings. Had it been desired to abolish actions for paternity fraud, or to make it plain that they must not arise, it would have been easy to do so. In these circumstances it is difficult to extract a legislative intention to proscribe actions for paternity fraud by reason merely of the general structure of the Family Law Act and the Child Support Act.
Conclusion
The husband's attack on the Court of Appeal's conclusion that he did not rely on the fraudulent representation found by the trial judge fails, and for that reason the appeal should be dismissed with costs.
The arguments advanced in support of the wife's notice of contention that:
(a)the tort of deceit does not extend to claims for damages arising from the paternity of children conceived and born during the course of a marriage;
(b)even if it did:
(i) s 119 of the Family Law Act does not comprehend those claims;
(ii) s 120 prevents them; and
(c)those claims so undermine the Family Law Act and the Child Support Act that parliament cannot have intended to allow them,
must be rejected.
Orders
The appeal should be dismissed with costs.
- AGLC
- Magill v Magill [2006] HCA 51
- Case
- [2006] HCA 51
- Decision Date
CaseChat Overview and Summary
The central legal issues before the High Court were whether the tort of deceit could be applied in the marital context, specifically in relation to false representations of paternity made by a wife to her husband during the subsistence of their marriage. The Court was required to consider the historical development of the tort of deceit, the abolition of inter-spousal immunity in tort by the *Family Law Act 1975* (Cth), and the relevance of the statutory scheme under that Act, which aims to minimise the role of fault in marital breakdown. The Court also had to determine whether sections 119 and 120 of the *Family Law Act 1975* (Cth) expressly or impliedly precluded such an action for deceit.
The High Court reasoned that while the abolition of inter-spousal immunity had opened avenues for tortious claims between spouses, the application of the tort of deceit in the intimate context of marriage, particularly concerning paternity, was problematic. The Court noted that the *Family Law Act 1975* (Cth) establishes a statutory framework for marital relations that largely operates on a policy of minimising fault. Imposing liability in deceit for representations about paternity within a marriage could be inconsistent with the ethical context and subjective contemplations of the parties, as well as broader public policy considerations reflected in the legislation. The Court concluded that attempts to construct legal rights and obligations in such an unsuitable environment should fail.
The High Court dismissed the appeal with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: GLEESON CJ,
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