Judgement of Magill v. Magill - County Court

Father wins paternity fraud case and is awarded $70,000

COUNTY COURT

CIVIL JURISDICTION

MELBOURNE

BEFORE HIS HONOUR: JUDGE JOHN HANLON

BETWEEN

Liam Neale MAGILL Plaintiff

- and -

Meredith Jane MAGILL Defendant

MR. P. BINGHAM appeared on behalf of the Plaintiff
MR. B GILLIES appeared on behalf of the Defendant

J U D G E M E N T

( 22ND November 2002 )

HIS HONOUR:
This is an action claiming damages flowing from the commission of the tort of deceit. The parties to these proceedings were once man and wife, having been married on 9 April 1988. The relationship was productive of the birth of a child named Arlon on 7 April 1989, and a further child, Heath, on 30 July 1990, and a third on 27 November 1991.

The action arises because it is alleged the defendant to these proceedings asserted that the plaintiff ex husband was the father of all three children. As to the first child, it is not disputed that indeed he was the biological father; and as to the second and third, it is now clear and not in dispute that he was not the father.

It is on the allegation of paternity in relation to the second and third child that this action is based.

In order to successfully utilise the civil wrong of deceit, the plaintiff must prove that the defendant has made a false statement knowing that it was false, or without any belief in its truth, or recklessly without caring whether it was true or not, therefore without any genuine belief in it intending that the plaintiff should rely upon it, it must be proved that the statement was relied upon by the plaintiff and as a result caused him damage.

The most direct evidence of the making of the allegation is contained is Exhibits A and B which are documents, being copies of the Notification of Birth to Registrar of Births, Deaths and Marriages in respect of these two children. These application forms are, it is agreed, filled in by the defendant and presented to the plaintiff for signature.

In each of them the assertion is contained in the form that the father was William Neale Justin Magill. In each of them there is the request that the child be registered with the family name of Magill, and certifies that the above information is correct for the purpose of being inserted in the Register of Births, and the declarant was aware that persons willfully making or causing to be made a false statement concerning the particulars required to be registered, shall on conviction be liable to the penalties of perjury. This is signed by the defendant.

Further, in each of them there is a declaration by the father agreeing that he be registered as the father of the child and that the family name would be Magill. In each case that was signed by the plaintiff, Mr Magill.

There is therefore evidence that she asserted paternity of Mr Magill of the two children to the registrar, and also by presenting the documents to him and having him sign and consent to the children being called Magill, that the representation was made to him.

That is evidence which in my view leaves no inference open other than that Mrs Magill did make the representation of paternity.

It is not now in dispute that those assertions were false. The children were submitted to testing, as a result of which the father of the two children was identified as not being Mr Magill, but being another person, someone with whom Mrs Magill does not now argue she was having sexual intercourse over a period of years.

The question then remains before liability becomes attached, did she know that the statement was false or was she making the statement without any belief this was truth or recklessly without caring whether it was true or not, and therefore without any genuine belief in it; and intending that the plaintiff should rely upon it.

As to that, Mrs Magill s testimony in this court was that in relation to Heath at the time that the assertions were made, she was of the view that Mr Magill was probably the father; a belief which she says was shaken at a later stage of the child s development when she saw photographs of her lover in childhood, which made her believe that Heath very strongly resembled him, and therefore he may well be the father.

As to Bonnie, the third child, she said that she was sure that her lover was not the father at the time that she made the representations, and she remains of the view that Mr Magill is the parent of the third child.

I find her protestations as to her state of mind as to this to be unconvincing. I am of the view that the evidence points very strongly in favour of the conclusion that she did know her husband was not the father of either of her children. Certainly at the very least, in my view, it pointed to the conclusion that when she filled in these forms, if she did not know for a positive fact that Mr Magill was not the father, she at least was at least being reckless as to the truth of her assertion, that he was and had no genuine belief in it. She intended Mr Magill to rely upon it, as indeed he did, in consenting to the naming of the children Magill.

The explanation which she gave for a greater degree of certainty attaching to her claimed belief as to the paternity of Bonnie was that sexual intercourse between her and her lover had fallen away to only two or three times after the birth of Heath, and that she was having sexual intercourse with her husband on a much more frequent basis. This induced the belief in her mind that he was indeed the father she said.
That assertion is of course belied by virtue of the fact that the child was born, and it is now not in dispute that Mr Magill was not the father. It is also a fact that Mrs Magill has admitted to intercourse with her lover unprotected by contraception. This must have happened at a time which she was able to identify, at the birth of her child as the time of the conception.

It seems to me to be impossible to conclude that she could have had any real belief in the assertion that she made, and in my view she must have known that Magill was not the father, and her lover was. At the very least, she has just been so reckless as to not have any genuine belief in the truth of the assertion at all, but nevertheless made it, intending to be relied upon.

The evidence I have already referred to compels me in that view, that in addition to that Mr Magill says, and I accept, that the sexual relationship between his wife and himself had by the time Bonnie came to be conceived, fallen away to almost nothing. I am inclined to think that the frequency relied upon by Mrs Magill was not in fact taking place, and the preponderance of the evidence would indicate to me that the greater likelihood is that she was having more frequent sex with her lover than she was with her husband.

That, it seems to me, is the evidence which indicates that this tort has been committed in respect of the assertions in relation to both children and in addition to all of that, there is further the evidence that she did make an apology in 1995 when the marriage was already on the rocks to the effect that she was sorry about Heath, which I take it must mean that she was apologising for her misconduct in having sexual intercourse, and asserting that the parent of Heath was her husband when indeed it was not, and she knew it.

The other thing I should note at this point is that for quite some time before the marriage is eventually terminated by the decree nisi, the parties had been separated; this commenced in November of 1992. At that time Mrs Magill made an application for Child Support in respect of all three children, and in that she named the person to support the children as being her husband.

Some time after that, and I am not sure if the evidence permits me to go further than saying probably 1995, Mr Magill came to the opinion that Heath was not his child. Probably again as a result of her apology at the time of her breakdown in 1995. But I do accept that when he spoke to Ms Staid about the matter, he did say that he knew that Heath was not his son, but nevertheless expressed the view that he was his father in all but the biological sense, I interpolate, and I love him.

It seems to me that that is of some significance in view of the fact that damages are claimed in respect of misleading him about Heath to a point well after 1995, at which time I am of the view that he already did know that Heath was not his, and so he was not reliant upon the deceit in order to continue to support Heath.

Mr Magill says that he has suffered the expense and losses in addition to a break down in his mental health of severe proportions. The damages claimed extend beyond monetary losses to damages for compensation of a general description due to the upset in his life and the contracting of the psychiatric disorder which he says is now afflicting him, and has been keeping him off work now for a period of some three years, his employment with the Commonwealth of Australia having been terminated in the late 1990 s.

As to that, I would point out the following, which is contained in the medical reports which have been placed before me in the course of this trial, and the evidence given from the witness box by Dr Kornan and Dr Cole and Dr Chiong.

It is convenient, I think, since no transcript of this proceeding is available, to go to the medical reports of those three doctors to summarise the opinions which they have concerning the illness suffered by Mr Magill. There are other medical reports in here from Dr Rose and Dr Wahr, but they were not relied upon, and I note however that it probably does not matter, because as I read the evidence that I have heard, there is not really a great deal of disputation amongst the medical practitioners.

Dr Chiong was the doctor to whom Mr Magill was referred by his family doctor. He saw him first in September of 1999, along with his new partner, and he attended once a week for a while, and then slackened off a little and his condition became more stabilised. The doctor said that he presented with severe depression, agitation and distressing panicky anxiety symptoms which had been present for a number of months prior to seeing him. He also complained of disturbed sleep with frequent recurring and frightening nightmares, poor appetite and significant weight loss, lacking in energy and motivation.

He was unable to work for the preceding few months because of poor concentration, low energy level and severe anxiety and depressive symptoms. There were times when he was so depressed that he felt that life was worthless and he has had suicidal thoughts. He told me his depression and anxiety state started in the setting of ongoing stress from the Family Court regarding Child Support and financial difficulty as the result of constant and unreasonable demand from his ex wife for Child Support payments. He was so stressed by the Child Support Agency that he had persistent nightmares about them threatening and harassing him.

His depression was, and the accompanying panic and anxiety symptoms had become, worse when he found out with DNA testing in April 2000 that two of his three children were not fathered by him. This knowledge had devastated Mr Magill, causing him a lot of emotional turmoil. He couldn t believe that his then wife was unfaithful to him and became pregnant twice with other men . I think that is probably a slight error by the doctor there, the only evidence that I have is there is only one other man. And consistently lied to him about him being the father of the children and demanded Child Support from him all those years.

He continues to struggle with feelings of anger, despair, disbelief, rejection and depression, and as a consequence he has become withdrawn and very distrustful of others around him. During this period he has also had a number of episodes during which he was confused, agitated and seemingly out of control emotionally .

I will not go into the family history which he obtained, it is there in the reports which Dr Chiong testified was his report, and he adopted it. The diagnosis that he formed was that a major depression as well as severe anxiety disorder with panic attacks. As to the precipitating and aggravating factors, he said that in the absence of previous psychiatric history, no family history of any psychiatric illness.

His major depression and anxiety disorder are most likely to have been brought on by the severe psycho social and emotional stress that he has been experiencing over the years since his wife had left him. These stresses include difficulty he has with the Family Court and Child Support Agency, financial hardship due to his ex wife s demand for Child Support, which at one stage reduced his take home pay down to $132 a week, and he still had to provide food, clothing and entertainment for the three children when they were with him over the weekends and holidays, in the painful knowledge that two of his three children whom he cares and loves for so many years, have turned out not to be his.

All these stresses are directly caused by the fact that two of the three children are not his. Had he been asked only to pay for his own Child Support instead of three, all these stresses and emotional trauma would not have happened, and he would have continued to be well, working and not suffering from anxiety and depression.

The doctor described the medication that he was on. He said that the medication had only been helpful to some extent, and he felt that he was unlikely to recover fully with the ongoing stressful situation which he is currently facing. He says he was likely to need further treatment and rehabilitation for a prolonged period of time. He considered the various arms of treatment which were available and may be of assistance. But he said: Until and unless his depressive illness improves significantly, his future prospect of returning to work full time in his previous occupation is poor, and I m not in a position to predict the precise future course and cost of treatment.

Dr Edward Cole is another psychiatrist who saw him, and he gave evidence also, adopting his report written on 23 September 2002. I will not go through the whole history again. His opinion was that he was suffering from chronic reactive depression of moderate to moderately severe degree. His condition is to be seen as stemming from his marital difficulties, and in particular from his wife s infidelity. He resents the fact that he is to pay for support of children who are not his, although he still feels affection towards them.

I could find little evidence to suggest that he was consciously exaggerating his feelings, and I believe that the breakdown of his marriage and the subsequent revelations about the paternity of his children have caused him very considerable pain and suffering.

He noted that he was seeing Dr Chiong and receiving medicines. He thought that that would require to remain for the foreseeable future. However he said: I would accept that his emotional distress is such that he is no longer capable of working, however I am not satisfied that he is permanently incapacitated, and there could be an improvement in his condition once the legal processes have been concluded; although I would not expect him to recover completely.

In clarification apparently, if any clarification was wanted, he referred to the exchange of letters and said In my opinion his inability to work was directly affected by the discovery that he was not the biological father of the two children regarded as his . In further clarification he said: In my previous report I stated that it was possible that Mr Magill could return to work once the legal processes had been concluded, although I would not regard it as probable. If he were to return to work, I think it unlikely that he would do this within less than six months of conclusions of the legal process.

Dr Kornan also gave evidence, having adopted the report which he wrote on 20 August last. He said in his conclusions: I consider that the underlying cause of his psychiatric condition has been the situation in which the marriage break up initially caused him a great deal of stress and distress. As he put it in the interview at one time How could the ex wife have three kids in four years and piss off? . I considered that the start of the psychiatric difficulties in an overt way occurred because of the marriage break up and all that it entailed. I think he is someone of rather rigid and obsessive temperament, with probably limited drive in many ways, he reacted understandably very poorly to the marriage break up.

I would suspect as well that there was the constant strain of dealing with the subsequent problems from the marriage break up including his wife requiring hospitalisation for substance abuse in the mid 1990 s or thereabouts. As well there would have been anyway some financial strain, even to pay for one child, had that been the situation over the years. As well I gained the impression that he was someone who was devoted to trying to see the children, so there would have been an extra strain on him because of that.

Be that as it may, I think that the alleged fraudulent misrepresentation as to the paternity of the children would be a noticeable added factor to raising the level of any psychiatric reaction. I think this was an extremely bitter blow to him and he now felt doubly cheated, so to speak, over the break up of the marriage.

To sum up, I think that the alleged fraudulent misrepresentation of the paternity of the children was a noticeable factor in his psychiatric condition, certainly the initial marriage break up has probably always been slightly the major factor leading to the current situation.

He referred to the comfort which Mr Magill might derive from the support and assistance from his present partner, and he said that he thought that the prognosis would be for an improvement after settlement of this case. I gained the impression that his partner also felt that there would be an improvement after settlement of the case and that she was reasonably hopeful of him returning to work. As a result of the marriage break up I think he will always be left with some mild adjustment disorder problems and some mild anxiety and depression. I think it will always have been a blow to his ego that the marriage broke up, and particularly now in these circumstances.

Be that as it may, I think that there will be an improvement of his psychiatric condition after legal settlement, I would anticipate then he will need to see Dr Chiong only occasionally, that really he will be able to be managed be his local doctor. He may need to take medication but at reduced levels after legal settlement for three to four years.

The opinions seem to me of the three doctors to be fairly close together. They express themselves in different ways, and I think the easiest for a layman to understand is probably Dr Kornan s assessment of the situation, which is that marriage break up itself on any view of it would be an extremely disturbing thing to befall anybody. And the situation simply made worse when he discovers the truth about the paternity of the children, and he discovers that he has been misled over the period of years as to his paternity.

It must be borne steadily in mind, in my view, when assessing damages to be awarded in a case of this nature that the damages are being awarded as compensation for the damage done to him by the misrepresentation. There is a danger that one can fall into the frame of mind that this case is about punishment of Mrs Magill for being unfaithful to her husband.

First of all, I take the view that this is not a case which calls for the application of the principals relating to aggravated and/or exemplary damages. It seems to me that in this situation compensation is called for, but to go further and mark out an area of behaviour as warranting aggravated and/or exemplary damages would be to disregard the complexities of the situation which faced Mrs Magill.

One part of her evidence which I can and do accept is that she found herself in a position which she could have a choice between endeavouring to save her marriage or face the enormous uproar which undoubtedly would follow upon her making a truthful statement concerning her beliefs as to the paternity of her children. This solution to the problem of course is no solution at all, that is to lie about it, but I am not so much lacking in comprehension of human frailty that I would ignore and push past an understanding of the extreme difficulty which faced Mrs Magill when presented with the form to fill in concerning notification.

The court will therefore, in approaching the question of damages here, award damages by way of compensation only. It is sufficient in my view to remind people that these damages are only awarded after liability to pay has been established, and in order to establish that liability the plaintiff must, as I said at the outset, prove that the statement was not just false, but known to be false or at least the maker of it was reckless as to whether or not it was false or not; which in itself is a finding which involves a finding of deceit upon Mrs Magill s part and deceit which has caused considerable damage to the life of her former partner.

I repeat, we are not here concerned with punishing her for being unfaithful to him with another man.

The next thing I should say about the damages is that an endeavour was made to prove economic losses relating to expenses involved in supporting the two children who are not his, by means of an economist who prepared a paper for the benefit of the plaintiff here, in which she endeavoured to estimate costs involved in supporting those children.

I, having heard her and heard what the nature of her paper was, came to the conclusion that if it was admissible at all, about which I have grave reservations, it was not evidence to which I would attach any real weight. Because as she frankly said, what is contained in that report are estimates made by her based upon surveys which endeavour to identify costs involved by a typical family of the sizes that she was talking about.

I have grave reservations about the establishment of a concept of a typical family, scarcely anybody would be representative of whole classes of people in our society. And to draw from that estimates of figures which are then relied upon by putting them to Mr Magill and saying is that correct, is not the way which one goes about establishing financial losses. It is not a way which attracts support from my understanding of what was trying to be done as distinct from what should have been done by way of provision of claims by Mr Magill based upon his experience.

So being left in that situation, it is incumbent upon the court not to speculate, as indeed I think a great deal of the paper was given over to; and in the absence of evidence and in the absence of speculation which I will not engage in, the solution provided by the law is to invoke our rules concerning onus and standard of proof. So that whilst one acknowledges that this is a difficult area, one must also acknowledge that some expense is involved and it necessarily must be and any allowance made for compensation for expense would have to be of such moderation that it could be demonstrated to be less than what must have been incurred in the upkeep of these children over the years.

This is not by way of an adjustment of child support payments or an alteration or a refunding of them, it is compensation based along the lines of Farlow s case type considerations, where the evidence is lacking but the certainty is there that there must have been some loss; and so approach the matter with that degree of moderation.

Next is the consideration that Mr Magill acknowledged back in 1995 that he knew Heath was not his, but he continued to act as the father. So the deceit which was practised upon him was not the factor which gave rise to him supporting Heath over the years up to the time when it finished, but it is my view that that means then that we would be confining our attention to the upkeep of Bonnie, and that extends from November 1991 up to October of 1999 when he ceased making payments. So that will be taken into account in assessing the general damages.

The plaintiff also claims compensation for time off work attending to them at birth which is set out in the table claiming in round figures some $10,000 for time off in attendance. The claims made in respect of that and expenses involved in access visits and so forth are claims which in my view were submerged in the payments made to Mr Magill in respect of time off, and subsumed in his claim for lost wages.

So applying those principles to the present situation, I would award a sum of $30,000 by way of general damages for pain and suffering, loss of enjoyment of life, past, present and future. In relation to economic losses in the past and present, for all of the heads claimed under expenses and so forth, keeping in mind that from 1985 onwards it is in respect of only Health, I would award the sum of $35,000. Having regard to the caution with which the doctors approach the question of future economic losses, it seems to me that a very modest sum indeed should be arrived at in respect of that, and I would award the sum of $5,000 which I know is low, but I do accept the opinion that whilst he might never fully recover, he will recover to the extent that he will fend for himself. I do not believe he is a man without resources. He has the support of an excellent partner, and I think that a moderation in those circumstances is what is called for.

Those figures add up to $70,000 which is the amount for which judgment will be entered.