Australian High Court Gives Paternity Fraud a Pass

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August 25, 2020 by Robert Franklin, JD, Member, National Board of Directors

Australia’s High Court has struck down a husband’s effort to sue his ex-wife for fraud due to her leading him to believe he was the father of two her children when in fact he was not.  The Court is both right and wrong in its decision that cries out for legislative remedy.

Liam Magill was married to Meredith Magill.  During the term of their marriage, she gave birth to three children.  Liam assumed he was the father of all three, but in fact, he fathered only the middle child.  Meredith allowed him to continue his assumption and indeed contributed to it.  For example, when the children were born, she filled out certain necessary forms that attend the birth of a child in Australia.  Those forms named Liam as the father.  Liam also signed the forms so stating.  As such, it seems clear that, whether intentionally or not, she informed him that he was the father of the children.

Later, he learned he wasn’t and the pair split up.  He sued her for the tort of “deceit,” and the trial court rendered judgment in his favor.  That judgment was overturned by the Court of Appeal whose ruling was upheld by the High Court.  Why?

Because, in Australia as in the U.S. and every other jurisdiction in the English-speaking world, there’s no duty on the part of a mother to inform the father that he has a child, nor is there any legal duty to tell her husband that he’s not.  In short, the two appellate courts ruled that there’s silence on the part of the mother wasn’t actionable.  Her decision to withhold the information about the children’s paternity was entirely her prerogative.  Nothing in either statute or common law requires her to tell the truth about the paternity of her children.

It’s a remarkable legal stance by any definition.

For example, in countless situations, we impose a duty of disclosure irrespective of whether there’s a specific statute requiring it.  Generally, a seller of anything who knows about a latent defect not easily observed by a potential buyer is required to disclose it.  That requirement overturns the old common law notion of caveat emptor (let the buyer beware) and does so for a perfectly sensible reason.  The seller knows about the defect and the buyer doesn’t.  Therefore, the seller bears the burden of disclosure.

But when it comes to paternity, we do the opposite.  We allow mothers to hide behind fathers’ lack of knowledge in order to perpetrate paternity fraud.  Again, no jurisdiction places the requirement of disclosure of what is undeniably a material fact on the person with knowledge of that material fact. 

The High Court rightly ruled that, since there was no duty of disclosure, failure to do so by Meredith was not actionable at law.

Now, I argue that Meredith’s representations on the birth forms that Liam read constitutes an affirmative representation to him of his paternity.  They were lies by her to him made for the purpose, or certainly the result, of getting him to play the role of father.  Therefore, her alleged “silence” on which both appellate court rulings hung, was no silence at all.  So, I contend that their rulings were at odds with obvious facts.

Whatever the case, the course for the Australian Parliament is clear – enact a statute requiring mothers to inform all possible fathers of their potential paternity.  In that way, the actual paternity of all children will be established at birth and the blight of paternity fraud will no more mar the lives of children and men alike.

After all, why would any legislative body stand by and watch as children’s lives are thrown into turmoil because their mother chose to lie about paternity?  Why should men’s parental rights depend entirely on the goodwill of mothers who may or may not be inclined to tell the truth?  Here in the U.S., we laud fathers and cry to the heavens that they’re important to their children’s well-being, but at the same time make no provision to ensure that they can be a part of their lives.  It makes no sense.

Plus of course the trauma inflicted on the man who believes he’s the father but turns out not to be is an outrage to any society that seeks to call itself civilized.  And the denial of parental rights to the man who is the father but doesn’t know the fact, is no less so.

There is, very literally, no excuse for allowing paternity fraud to continue and many reasons why it shouldn’t. 

It’s long past time for legislatures to act.

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