Court keeps nose out of bedroom
LIAM MAGILL has discovered one of the few places the law just won't go - infidelity - and some kinds of justice it just cannot deliver. Soon after he married Meredith Magill in 1989, she bore him a son, and soon after that, she took a long-term, secret lover. Unknown to Mr Magill, it was a productive affair. The second son and daughter he thought were his, in fact were the offspring of his wife and her lover.
He thought all three were his even after the marriage broke down in 1992, and did so until Mrs Magill revealed her "suspicions" about their second son's paternity while she was admitted to hospital with a nervous breakdown three years later.
Her suspicions were raised much earlier, after she saw a photograph of her lover's other child, who looked remarkably like her own. In 2000 a DNA test confirmed the two children were not Mr Magill's. His child support payments were adjusted, and his arrears cancelled, but that was not enough.
He sued his former wife for damages, claiming compensation for the severe anxiety, depression, money spent and loss of earnings wrought by her deceit. The Victorian County Court surprised many by awarding him $70,000 in 2002, despite acknowledging Mrs Magill's difficulty in investigating her suspicions while maintaining her marriage.
It found Mr Magill had relied on his wife's deceitful representation that he was the father, when he signed his children's birth registration forms.
The decision was overturned in the Court of Appeal last year, and yesterday the original decision was unanimously dismissed by six High Court judges. Three judges found there could be no legal action for deceit about paternity between spouses, while three said there could, but only in exceptional cases, and this was not one.
All six said the law could not provide Mr Magill with the moral justice he sought. There could be no duty to disclose infidelity.
Justice Ken Hayne said: "The law cannot satisfactorily prescribe how a relationship that depends entirely upon matters wholly personal and private to the parties to it is to be maintained. The trust and confidence between marriage partners is based in much more than considerations of sexual fidelity."
The Chief Justice, Murray Gleeson, said Parliament had legislated the policy of protecting and preserving the institution of marriage, and imposing a legal duty to disclose infidelity would, "in the practical circumstances of many cases", go against that policy. Nor would he impose a duty to give an assurance of paternity.
Justice Gleeson said: "Few husbands expect, or seek, from their wives, assurances of paternity. Such assurances, if volunteered, would often raise, rather than resolve suspicions."
Three judges - William Gummow, Michael Kirby and Susan Crennan - jointly said fault was no longer relevant in divorces, and the child support scheme allowed for the recovery of money wrongly paid. They said infidelity should be left "to the morality of the spouses".
The judgements should leave no doubt about the High Court's view. Answers to quarrels such as these are not to be found in the blame of the common law, but in the no-fault procedures set up under the Family Law Act.
Mr Magill's lawyer, Vivien Mavropoulos, said the case had highlighted fundamental social issues in Australia. "They are the importance of truth in relationships and marriage, a child's identity and heritage, parentage and the responsibilities that go with that and a person's blood line, health issues and medical history," she said.
