Health Blog

1. Background
The case of Magill v Magill concerns a couple in Victoria who were married in 1988. Mrs Magill bore a son on 7th April 1989, another son on 30th July 1990 and a daughter on 27th November 1991. The couple separated in November of 1992. After separation, the children lived with their mother whom later applied for child support. In 1995, Mr Magill read in Mrs Magill’s diary concerns about the paternity of their second child. Having suffered from a nervous breakdown, Mrs Magill informed Mr Magill about her suspicions on the paternity of their second child. She confessed to having an extra-marital relationship without the use of contraception since 1989. Her suspicions about the second child strengthened when she saw the likeness of her son to that of a photo of the man whom she had been having the extra marital relationship with when he was a child. Following this, in 1996 and 1997, Mr Magill lapsed in his child support payments. DNA tests in 2000 confirmed that not only was the second son not of Mr Magill’s bloodline, but also the daughter. Accordingly, child support payments were readjusted to reflect responsibility only for the first son. Mr Magill’s arrears were reduced to account for the amount paid for the two youngest children. Legal proceedings were then initiated.

2. Proceedings
2.1. County Court of Victoria
In January of 2001, Mr Magill brought an action under the tort of deceit against Mrs Magill. He claimed that his wife’s fraudulent misrepresentations made knowingly or recklessly had caused him to act as a father for the second and third children, thereby incurring expenses for their care. He also claimed damages for the anxiety and depression brought upon him and for loss of earnings due to his inability to work from this condition. The trial judge found in his favour and awarded $ 30,000 for pain and suffering, $ 35,000 for past economic loss and $ 5,000 for future economic loss. Mrs Magill appealed successfully to the Supreme Court of Victoria’s Court of Appeal.

2.2. Court of Appeal of the Supreme Court of Victoria
In the Court of Appeal, the wife submitted that the tort of deceit did not apply to representations of paternity. However, the Court of Appeal did not address that question having found that Mr Magill had not fulfilled the necessary elements for the tort of deceit. The ruling was overturned although the damages available to the husband were upheld. Mr Magill then appealed to the High Court.

2.3. High Court of Australia
2.3.1. Ruling
The six judges of the High Court ruled unanimously to dismiss the appeal with costs although they did so for varying reasons. Four judgements were given, with a shared judgement by Gummow, Kirby and Crennan JJ.

2.3.2. Issues
The issues tackled by the judges can be summarised by, the husband’s appeal in that the Court of Appeal erred in concluding that he did not rely on the fraudulent representation, and the wife’s notice of contention arguing that;

1.    The remedy pursued by appellant was not available due to s119 of the Family Law Act 1975 (Cth) does not apply to the tort of deceit, or s120 of that Act prevents 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.
3.    The claims so undermine the Family Law Act and the Child Support Act that parliament cannot have intended to allow them.

2.3.3. Ratio Decidendi and Obiter Dicta
All the judges ruled that neither s119 nor s120 of the Family Law Act 1975 (Cth) prevented the action under the tort of deceit to lie. As stated by Gleeson :

“The legal and historical context of the provisions show that they do not have the consequences suggested in the respondent’s notice of contention.
1.    S119 entirely abolished the old spousal immunity based on the unity of husband and wife, allowing actions in tort against one another. An action in deceit is no exception.
2.    S120 abolished actions against third parties, which had no direct relationship to the tort of deceit.
3.    Neither section prevents the appellant’s claim.”

Regarding the second issue of the wife’s contention that the tort of deceit does not extend to misrepresentations in a marriage, all the judges other than Heydon J agreed that the action under the tort of deceit did not lie in this case. Both Gleeson CJ and Hayne J however, recognised the possibility of the action lying in differing circumstances, Gleeson CJ stating “Application of deceit to marital relations is not impossible” and Hayne J giving the exception of both parties having shown that they intended to give rise to legally enforceable consequences.

Heydon J rejected the wife’s submissions and ruled that the tort of deceit extends to claims for damages arising from the paternity of children conceived and born during the course of a marriage. He also addressed the wife’s third contention, stating that “Had parliament desired to abolish actions for paternity fraud or make it plain that they must not arise, it would have been easy to do so.”  Furthermore, with respect to the husband’s claim, Heydon J found that there was no reliance on the representation made as to the paternity of the children, it was on this alone that he ruled to dismiss the appeal.

The ratio decidendi of this case can only be that of the majority, in that the action under the tort of deceit pertaining to false representations in marital relations does not lie other than in exceptional circumstances. Gleeson CJ also mentioned as obiter dicta the bounds of the legal remedy . If there was a legal duty to disclose the truth about matters, it is in contradiction with the ‘no fault’ philosophy of the Family Law Act.

COMMENTARY
This commentary examines and critiques points of reasoning by the High Court to draw a conclusion on the findings of the case.

1. Prevention of the tort of deceit by legislation
The views expressed regarding section 119 of the Family Law Act are agreed with. Concerning section 120, even if read outside its historical context, “damages for adultery” would not prevent an action in deceit since it depends on the fraudulent representation of paternity. If there had not been an extra-marital relationship, a false representation could still be made and an action would still lie. The action does not rely on the ‘adultery’ but on the false representation made either knowingly, with knowledge that it was untrue, or recklessly.

2. Can the tort of deceit extend to apply to representations as to the paternity of children conceived and born during the course of a marriage?
Why would an action in deceit not extend solely in these circumstances? What if the children were conceived or born outside of the marriage? The limits placed here are unjustified. Furthermore, how about the kinds of representations made? Deceit can lie with regards to any other type of representation.

The views of Gummow, Kirby and Crennan JJ that, the pain and suffering claimed by the husband is hard to determine as being caused by the false representation or the distress from the marriage breakdown, thereby causing difficulty in determining the reliance and causation , is disagreed with. The pain and suffering the husband experienced was caused not by one or the other, but by both the break up and the false representation. Although his depression may have commenced with the marriage breakdown, the issue of paternity could only have exacerbated the condition. Was there no damage because the depression did not start with the revelation of true paternity? Furthermore on reliance, the husband did in fact think that he was the biological father to the children and he did rely on a number of factors. He did not assume that he was the father to random children. The reliance did exist and so did the pain and suffering. The further view that the use of allowing the action is outweighed by the adverse effects on the family  is also challenged here. The adverse effects to the family have already occurred and hence should be no obstacle in the search for justice.

When Hayne J mentions that it may be hard to identify the elements of the tort of deceit as events would be singled out of context of the whole marriage , it brings about the question; does the element of deceit have to be a singular event? It may have been concluded by the Court of Appeal that the birth notification forms were not relied upon , but that does not mean reliance did not exist. Following the line of reasoning of Hayne J, within the context of the whole marriage, and without picking out a singular event, it can be said that the reliance on the misrepresentation of paternity ran throughout the term of the marriage, beginning with the start of the extra-marital relationship. The subsequent point by Hayne J is that it may be impossible to force the facts of the relationship into the mould of tort of deceit . However, many situations in life are ‘forced’ into the moulds of legal concepts such as the offer and acceptance in a contract as pointed out by Heydon J . The point is equally relevant with the view that it is hard to transpose the principles from commerce into the context of marriage . As to Hayne J’s fourth principle that parties may not intend to resort to a breach of contract to settle matters within a marriage , it is only partially true. The reality is that couples within marriages do sue each other in tort, and the legislation (s119 Family Law Act) has allowed it to be so. Lastly, as to the fifth set of principles that there is no satisfactory application of the law of deceit as it depends on objective and generalised standards of conduct , that is just as matter of interpretation of the law of deceit.

3. Reliance on the Birth Notification Forms as misrepresentation
I agree that the husband did not rely on the birth notification forms, but he did rely on the wife’s conduct. Although the appellant’s submission was based on his reliance on the forms, does it matter as long as the reliance was there?

4. Elements of the tort of deceit
After considering the above, it is of my opinion that the elements of the tort of deceit can be fulfilled. The five elements to the modern tort of deceit include; the defendant made false representations, there was knowledge of or recklessness as to the falsity of the representations, there was an intention that the representations were relied upon, the false representations were acted upon in their reliance, and damage was suffered from the reliance of these representations .

1.    The defendant made false representations over a prolonged period of time by her conduct, but not her silence as there was no duty to disclose. It matters not that a singular event was not identified. The sum of her conduct from the beginning of the extra-marital relationship to the revelation of the truth was the entire event of false representation.

2.    The defendant had knowledge of or was reckless to representations being false. Even though she had suspicions about the paternity of her second son before seeing the photograph , she was already reckless in her conduct of not using contraception in her extra-marital relationship. Did she think that she would not get pregnant by another man? And although she submitted that she had suspicions as to the paternity of her second child during pregnancy , she persisted with her reckless conduct of not using contraception in her extra-marital relationship, showing a lack of concern and sustained recklessness.

3.    The element of intention that the false representation was relied upon was fulfilled by the wife over a period of time. She may not have known affirmatively whose child the second son was, but she did not intend to disclose her suspicions. Although there is no duty to disclose, she intended that her husband never find out, and hence intended that he relied on his belief of his paternity.

4.    The action in reliance of the false representations was the persistent care in the numerous aspects of welfare of the children.

5.    It can be argued that the husband could not have suffered any damage from his care of the children as he was ignorant to their true paternity. However, is there no damage done to a person if he was harmed permanently as a baby and did not know otherwise? The deprivation of the knowledge that an act has been performed to a person’s detriment does not mean that damage has not been done.

For these reasons, I would rule in favour of the appellant.

Gleeson J  

Reasoning:

1.    the legal and historical context of the provisions do not have the consequences suggested in the respondent’s notice of contention.
-    S119 entirely abolished the old spousal immunity based on the unity of husband and wife allowing actions in tort against one another. An action in deceit is no exception.
-    S120 abolished actions against third parties, which had no direct relationship to the tort of deceit.
-    Therefore, neither section prevent the plaintiff’s claim.
2.    Distinguished PvB. Respondent’s argument too wide and too narrow. Whether narrow, in terms of limited to representations of paternity or wide, in terms of extra-marital sexual relations, why single out that particular kind of representation?
-    danger of creating a general legal duty to disclose facts which would be contrary to the Family Law act which declares the need to preserve and protect the institution of marriage. However, such a duty may exist in particular circumstances.
-    The judicial creation of a new from of immunity would be inconsistent with legislation. S119 applies to all forms of torts and abrogated spousal immunity.
3.    The elements of the tort of deceit as applied to appellants claim – the husband did not rely on the signing of the birth notification forms for his belief in his paternity.
-    appellant did not make clear the way in which he would have acted differently if he had known that the children were not his.
-    Regarding his claims for damage. His depression resulted from the distressing marriage breakdown, not directly from a change of position resulting from the inducement of paternity.
-    Elements of actionable deceit not fulfilled.

Ratio: Application of deceit to marital relations is not impossible but attempts to construct legal rights and obligations in an unsuitable environment should fail.

Obiter:
Bounds of the legal Remedy – The law would examine if there had been a legal duty of care. Underlying the legal remedy of deceit is a duty of honesty of which community standards do not require the imposition of legal consequences. If there was a legal duty to disclose the truth about matters, it is in contradiction with the ‘no fault’ philosophy of the Family Law Act.

Appeal dismissed with costs.

Gummow, Kirby and Crennan JJ

Reasoning:
1.    s119 does not suggest there is a continuing spousal immunity in relation to some torts and not others. Therefore the tort of deceit still lies. S120 abolished 3 causes of action which were former actions against third parties and not meant for application between spouses. S120 also does not stand by itself but with the ‘no fault’ principles of the Family Law Act in s43. Therefore the sections do not expressly or impliedly prohibit action in deceit.
2.    Division of opinions in other jurisdictions and public policy demonstrates the need to test the issue of whether deceit applies to false representation of paternity made during a marital relationship.
-    Five elements to the modern tort of deceit; defendant made false representations, knowledge or recklessness that the representations were false, intention that representation was relied on, it was acted on in reliance of false representation, and damage suffered from reliance of representation.
-    Court of appeal found that the intention of the defendant at the signing of the birth forms was only to register the names of the children. The father didn’t rely on the signing of the forms as a representation of paternity but on the defendant’s silence. Silence is only a misrepresentation if there is a duty to disclose. There is no legal duty to disclose information about an extra-marital relationship. Private matters of adult sexual conduct and a false representation of paternity are not amenable to assessment by rules and elements of deceit. In the absence of a clear need for the law to impose a duty of disclosure, it should be left to the morality of the spouses.
-    The pain and suffering claimed by the husband is hard to determine as being caused by false representation or by a compound reaction to the distress of the breakdown of his marriage. It is also therefore hard to establish his reliance and causation. Further, the use of allowing the action is outweighed by the adverse effect on the wife children and husband.

Ratio: False representations concerning an extra-marital sexual relationship or its consequences made by one spouse to another during the course of a marriage (ie excluding circumstances involving either a duty of care or a duty of disclosure) are not actionable in deceit.

Appeal dismissed with costs.

Hayne:

Reasoning:

-    agrees with the conclusions and the reasoning about s119 and s120 of Gummow, Kirby and Crennan JJ.
-    Differing principle of why appeal should be dismissed.
-    1st set of reasons. Difficulty in identifying elements of tort in continuing relationship because what’s been said and done takes its meaning from their whole experience between them. A single action cannot be looked at out of the context of the whole marriage. In the case of tort of deceit, particular events would be singled out to point towards reliance of the husband on representations of paternity. In this case, the birth notification forms presented as relied upon cannot be singled out. When the forms were signed, the relationship was intact and the assumption of paternity was already there. After the births of the second and third children, the assumption continued, not having relied on the birth notification forms.
-    2nd set. For deceit to lie, there is a need for fraud, to show that the false representation was knowingly, without belief in its truth, or recklessly made. It is not possible to conclude that there was a particular statement which was relied upon by the appellant but rather a course of events in which things were said and done and not said and not done which led him to believe in his paternity. It is at least difficult if not impossible to force the facts of a relationship into the mould of the tort of deceit.
-    3rd set. There are commercial cases where a failure to speak conveys a falsehood, but there can be no unthinking transposition of such principles from a commercial setting into the radically different context of marriage. Look at what would happen if the law regulated disclosure in marriage.
-    4th set. The nature of the trust and confidence in relationships extends beyond that of just sexual fidelity, and from this nature, it is seen that the parties don’t intend to resort to using a breach of contract to settle matters. The same principle applies to the action of deceit.
-    5th set. The law of deceit finds no satisfactory application because it depends upon the application of objective and generalised standards of conduct to a very particular and personal relationship in which it is the parties themselves who do, and must, mould the way in which their relationship is ordered and conducted.

Ratio: Representations made by one party to a marriage to another about the relationship between them (including but not limited to, questions of paternity of children and sexual fidelity) are not intended by the parties to give rise, and are not to be treated by the law as giving rise, to consequences enforceable by an action for deceit. Unless both parties are shown to have intended that what was said or done should give rise to legally enforceable consequences.

Appeal dismissed with costs.

Heydon

Reasoning:

1.    In ss119 and 120 parliament showed it was capable of dealing clearly and decisively with problems arising out of the interrelationship of tort law and family dealings. Had parliament desired to abolish actions for paternity fraud or 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.
2.    extent of deceit independant of statute. -  As stated by Viscount Haldane LC, the duty of honesty is a universal one. Even though in the past there was immunity from certain actions it did not mean that there was no duty. The immunity from suit having been removed, an action for the tort of deceit, is available.

Ratio:

The husband’s argument that he relied on the fraudulent representation fails, and for that reason the appeal should be dismissed with costs.

Obiter:

The tort of deceit does extend to claims for damages arising from the paternity of children conceived and born during the course of a marriage.

s119 and s120 of the family law act do not prevent the action of tort of deceit

the action does not undermine the family law act and the child support act such that parliament did not intend to allow it.

The case was dismissed with costs.