Paternity - DNA vs deception
In March 2000, Liam Magill of Melbourne discovered, as a result of DNA testing, that two of the three children born during his marriage were not his biological offspring. Mr Magill issued proceedings against his ex-wife in the County Court based on the law of deceit. He claimed damages for personal injury in the form of anxiety and depression caused by the fraudulent misrepresentations of his wife. He also claimed financial loss including loss of earnings as well as expenditure on the children.
The County Court found in favour of Mr Magill on the basis that the presentation of the birth registration forms, for which he was to become a signatory, constituted misrepresentation by the mother who, by her actions, was suggesting he was the father. A total sum of $70,000 in damages was awarded: $30,000 for pain and suffering and $40,000 for past and future economic loss.
But the decision was later overturned by the Court of Appeal on the grounds that Mr Magill had failed to establish the elements of the tort of deceit. A further appeal by Mr Magill to the High Court was also unsuccessful. While the decision was unanimous among the six High Court judges, three of them concluded that the tort of deceit did not apply to false representations made about an extra-marital sexual relationship or paternity during the course of a marriage. The other three judges found that while the tort of deceit could apply within a marriage not all false representations made within a marriage contain the required legal elements to be actionable.
Public reaction to the case of Magill vs .Magill [2006] HCA 51 has been mixed. Men’s groups and sections of the media have been vocal about the rights of individuals to access technology that can assist in ascertaining whether they are in fact the parent of a child. Similarly, many professionals who practise in the family law area recognise the need to protect children and existing family relationships. The Family Law Act 1975 establishes certain presumptions of parentage based on marriage, cohabitation and acknowledgment of paternity through a birth certificate. There is, however, provision for the Family Court under the Family Law Act 1975 or any Victorian court under the Status of Children Act to order blood tests where doubt regarding paternity exists.
The development of DNA technology has made it possible to identify paternity with reasonable certainty. However, the new technology, while creating rights and choices for individuals, also presents dilemmas for families. There is no doubt that it is in the best interests of a child to know who his/her biological father is and, equally, fathers have a right to know their biological paternity and the obligations attached to that. The role of the court is to balance the best interests of the child alongside the ethical and privacy issues associated with genetic testing.
The High Court ruling in the case of Magill vs. Magill may quell the rush on “paternity fraud” claims for now. Issues regarding paternity or other family law matters are best addressed with proper and immediate legal advice. A swift resolution will minimize the financial, emotional and psychological effects that may accompany a protracted family law claim.
More information
Useful web links
Victorian Institute of Forensic Medicine: www.vifm.org/dnalink.html
Disclaimer: The information in this article is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Warwick Teasdale, Stephen Gregory; Paula Leslie or Barbara Watson of our office. | 
