Magill vs Magill

Family law: Well this happens once every blue moon particularly in family law. I haven't read a High Court judgement in ages and the bench is almost unrecognisable compared to way back when... The case is about a husband suing his wife for damages arising from deceit, in relation to the children's paternity. Anyway, the court ruled that there is no law guarding against infidelity by one of the spouses because it should be implied in the sanctity of marriage and the moral high ground that comes with it is you don't do this kind of shit to the other.

I'm agreeing with the husband's lawyer on this one. Societal values are evolving and I think the law should change to accommodate it. You would think that infidelity is one of the main reasons leading to divorce. But of course you won't find that statistic in the ABS because we have a no-fault system in Australia, but you read about it enough in newspapers and magazines. If the mother has knowledge that her child is not her husband's, isn't that the same as fraudulent and deceptive conduct, if she remains silent about it?

In the eyes of the law marriage is a contract. There is no doubt there was deceit. Under section 119, "Either party to a marriage may bring proceedings in contract or in tort against the other party."

However, and this is why the appeal was dismissed, section 120 provides "no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage."

Australia's Family Law Act 1974 contains utopian principles (known as the guiding lights when I was in law school and according to my master in my clerking days) such as the is no-fault principle and the children's interests are paramount principle (ss 43, 75).

I submit to their Honours that these two principle sit at odds with each other.

Now, if the children's interests are paramount, would it not be in the interests of the children for them to know who their real father is? Therefore, shouldn't the mother be held responsible for not looking after the children's best interest because she was not only deceiving her husband, but her children as well?

I'm sure there is a tortious claim in there on behalf of the children (if they end up as their "supposed" father did with mental or psychological problems). However, this is merely speculation and it would be highly unlikely that the children will be suing their own mother.

Having said that though, going back to my first point, family values are changing, we don't live in a vacuum and the idea that children might sue their own parents might not be so far-fetched afterall, but this is probably not something that I would condone, it's purely argumentative of course!