GLEESON CJ GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ
LIAM NEAL MAGILL APPELLANT
AND
MEREDITH JANE MAGILL RESPONDENT
Magill v Magill [2006] HCA 51 9 November 2006 M152/2005
ORDER
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Magill v Magill [2006] HCA 51
Case
[2006] HCA 51
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Liam Neal Magill against the decision of the Victorian Court of Appeal. The appeal concerned a claim in deceit brought by Mr Magill against his former wife, Meredith Jane Magill. Mr Magill sought damages for alleged false representations made by his wife regarding the paternity of two children born during their marriage. DNA testing conducted after the marriage ended revealed that these children were not Mr Magill's biological offspring.
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
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.[31](2002) 211 CLR 317.[32](2003) 215 CLR 1.[33](2006) 80 ALJR 791; 226 ALR 391. 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].
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GUMMOW, KIRBY AND CRENNAN JJ
(dissent)
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. 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.[31](2002) 211 CLR 317.[32](2003) 215 CLR 1.[33](2006) 80 ALJR 791; 226 ALR 391. 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.