Mothers are not always legally obliged to tell their husbands the truth about their children's paternity, the High Court has ruled.
The full bench of the court dismissed an appeal by Melbourne man, Liam Neil Magill, who sought damages from his ex-wife for the pain he suffered when DNA tests revealed two of her three children were not his.
Mr Magill paid child support for all three children for eight years after the marriage broke down.
The High Court unanimously dismissed his appeal. Three justices found that a spouse could not take legal action against his wife for lying to him about paternity.
Three other justices said that such legal action might succeed in exceptional circumstances, but not in Mr Magill's case.
The Magills married in April, 1988. Mr Magill's son was born in April 1989.
Chief Justice Gleeson saidThe law could not oblige a person to tell their spouse the truth if it risked damaging the marriage."The Family Law Act declares the need to preserve and protect the institution of marriage," Chief Justice Gleeson said. "That is a legislative expression of public policy. "The imposition of a legal duty of disclosure of infidelity would, in the practical circumstances of many cases, be contrary to that policy."
He said Ms Magill deceived her husband, "but the hurtful deception was in her infidelity, not in her failure to admit it". Chief Justice Gleeson said Mr Magill failed to prove that the harm he suffered was a result of his wife's deceit.
Five months later, his wife, Meredith Jane Magill, began an affair. In July, 1990, and November, 1991, she gave birth to her lover's children, but allowed Mr Magill to name himself as their father on the birth certificates.
The Magills separated in November, 1992, and later divorced.
In 1995, Mr Magill first learned of his estranged wife's doubts but continued to pay child support.
Mr Magill was never credited for his child support payments for the two children.
Justices William Gummow, Michael Kirby and Susan Crennan saidMr Magill's appeal failed because Australian law no longer recognised fault in divorce and new laws permitted the recovery of amounts wrongly paid for child support.
His payments were adjusted in 2000 to reflect only one child and an amount he owed the agency for failed payments was cleared.
In 2002, Mr Magill was awarded $70,000 in damages and economic loss by the Victorian County Court. The Court of Appeal overturned that decision. The High Court upheld its ruling.
Outside the High Court in Melbourne, Mr Magill thanked his partner Cheryl King, who represented him in a separate County Court case, which he lost last week.
"She had the guts to stand up on her own with no legal representation against the might of the Child Support Agency and the government," Mr Magill said.