Dateline: Australia
Author: Soli
From: Dads On Air
Via: Honor Network

Down Under Takes On Whole New Meaning

The High Court is confronting that issue right now. Liam and Meredith Magill were married in April 1988. A son was born in April 1989. Unknown to her husband, a few months later Meredith began an affair with a man, having unprotected sex until early 1995. In July 1990 a second son was born. Then, the next year, a daughter. After separating, Meredith admitted to Liam her concerns over paternity. A few years later she agreed to DNA tests. Liam learned that the two younger children were not his.

He was left devastated, suffered chronic depression and was unable to work. He sued Meredith for the tort of deceit, claiming financial compensation for his pain and suffering, but not for money spent on the upbringing and maintenance of the children.

While the Victorian County Court found that Meredith had deceived Liam when she nominated him as the father on birth registration notices, that was overturned last year by the Victorian Court of Appeal. The High Court will now decide whether the tort of deceit will hold Meredith accountable for her actions.

There are few hints as to which way the High Court will go. But few will be surprised to hear that at the hearing a few weeks back, Justice Michael Kirby pointed to international law as the guiding light. He cited Article 3 of the Convention on the Rights of the Child and said it means that the starting point in any matter that comes before the court must be determining what is in the best interests of the child.

Up in the rarefied atmosphere of international law, it’s a neat sounding slogan. But down in the trenches, trying to apply it to the specifics of a case like this is another matter. Kirby suggests that the “best interests of the child” test applies for the simple reason that this case involves the depletion of family income: were Liam Magill to win, Meredith Magill would be forced to pay. It’s a novel argument. Taken to its logical conclusion, it would prevent any legal action against any person who also happens to be a parent. After all, any legal payout drains the family income to the detriment of a child.

Note that Kirby’s focus on the best interests of the child did not extend to a child knowing their biological father. Given that adoption laws are now premised on this rationale, one might think it should also apply here.

In any event, the High Court will need to probe a little deeper than the fine sounding but vacuous provisions of international law. And the question is simple: should the law of deceit apply where a mother and wife has deceived a husband into believing he is the father of a child? The court need not mess with the law of deceit. The principles are clear. Only the facts are new because science – DNA testing – is now revealing the deceit.

Those who claim there is a public policy argument in letting sleeping dogs lie assume that preventing litigation of this kind will make for happy families. It will do no such thing. It will only encourage women to perpetrate fraud in an age when science can uncover the truth. And there is no turning science back. Legal disputes over paternity fraud do not create the unhappiness. They are merely the aftermath of mothers deceiving men.

As in every other sphere of life, the only way to encourage responsibility is to make people accountable for their actions. The law has an important role in sending powerful messages capable of shaping behaviour in the future. Far from creating more unhappiness, legal sanctions for paternity fraud will, in the long run, encourage mothers to be honest about paternity.

That is why, if the High Court decides that the laws of deceit do not apply, in effect allowing women to engage in paternity fraud at will, parliament will need to step in. As the Australian Medical Association has said, this is a time bomb ready to explode; the AMA suggests that in Australia there are 200,000 families where the “presumptive father is not the biological father”.

Unfortunately some feminists refuse to acknowledge the reality of paternity fraud. Following the Victorian Court of Appeal’s decision against Liam Magill, the former Victorian convener of the Women’s Electoral Lobby, Lisa Solomon, announced: “Women are moral, reasonable, rational beings. It would be a very rare instance where a woman would name someone who wasn’t the father of the child.”

For Solomon, it was about vindictive men using DNA tests to avoid paying for children.

Get the picture? Women, good. Men, bad. Phew. Nothing like a little sex stereotyping when it suits. Leave aside the rank hypocrisy of feminists resorting to the kind of sweeping generalisations that would send them ballistic if made in the reverse. The real problem is that gender-blinkered statements get us nowhere in sorting out what to do when paternity fraud happens.

If a mother gives birth to a child and is negligently given the wrong baby in hospital, no one would question her right to claim damages. Deliberate paternity fraud should be no different.

It’s not a person’s sex that matters. It’s the damage caused by another that counts.

One suggestion is that paternity testing be made mandatory whenever a birth is registered. A correspondent from University College in London emailed during the week with the following idea: “As long as BDM [Births, Deaths and Marriages] registries are kept, they might as well be kept accurately. I would give about 10 months’ notice before the new regulation or legislation takes effect. That’s enough time for people to adjust their behaviour (or improve their contraceptive methods). With complete transparency and accountability, responsible adults will be better empowered.”

It’s an interesting idea. Short of that happening, paternity fraud is here to stay. And so the question is whether we condone it or condemn it.

If the High Court or parliament shies away from the issue, that will amount to society, in effect, condoning fatherhood founded on fraud.