FAMILY LAW: by Babette FrancisNews Weekly
Paternity fraud penalises the innocent
, August 13, 2005
Businessmen who are caught committing corporate fraud or insider trading are exposed and punished - with fines, jail or both - and rightly so. However, women who commit paternity fraud, i.e. deceive their husbands about the paternity of "their" children, appear to get away with it and seem to have the Victorian Women's Legal Service and the Child Support Agency on their side, reports Babette Francis.
Paternity fraud not only involves infidelity, but also deception at a most fundamental level of the husband, the children and the community. Birth certificates need to record accurately who the biological parents are - not only for legal reasons, but also because medical issues and issues of consanguinity may arise. Here is the story of the paternity fraud inflicted on Liam Magill.Liam Magill married Meredith McClelland in 1988. Her uncle, Bryan Lockhardt McClelland, conducted the marriage ceremony at Meredith's home town and her family's property Tallala in Sea Lake, Victoria.
They were married for only four years. She gave birth to three children, in 1989, 1990 and 1991. Liam loved Meredith and he trusted her. He is a non-confrontational man who just kept believing Meredith about the unplanned pregnancies.
In 1992, when the youngest child was only 11 months old, Meredith left with the three children, saying she was "not happy". To this day, Liam has never had an explanation for her leaving. He was and is still devastated by what took place all those years ago.
He paid crippling child support payments for the three children from November 1992 until March 2000 when DNA tests showed that only the eldest child was his. He spiralled into a deep depression.
There was no recourse, no refund, no compensation, no apology, and no legal action available for Liam to take Meredith to task for her terrible deception. Meredith deceived her own children and she deceived Liam Magill.
However, with the help of a young lawyer, Vivien Mavropoulos, Liam Magill made an attempt to try and set a precedent in this area of law (i.e., paternity fraud).
He succeeded. In November 2002, County Court Judge John Hanlon awarded him damages of $70,000 for the deceit he had endured surrounding the paternity of the children that were fathered by a family friend DR who, with his wife VR, were friends of the Magills during their marriage.
In January 2003, Meredith's legal team, fully funded by the Victorian Women's Legal Service, appealed against the decision. They then handed the case over to the leading legal firm of Clayton UTZ, who in turn managed to have the judgment overturned in the Victorian Supreme Court in 2004.
So Liam Magill, who gave his love and his financial support to his wife and the three children, has been left to pick up the pieces.
In 1998, Meredith had obtained a settlement of $40,000 from Liam, based on four years of marriage and three children. She lives in the home she purchased from that money.
It seems that the courts will not hold the mother or her lover accountable for the deception that has ruined so many lives. In the meantime the biological father DR and his wife VR left Victoria to live in Queensland.
Liam has a number of dedicated people, including Vivien Mavropoulos, working unpaid to have the case heard in the High Court of Australia. These people feel that Liam Magill should be vindicated and be compensated for his pain and his hurt.
International law states that every child has the right to his or her true identity. It is unfortunate that the Supreme Court of Victoria allowed Judge John Hanlon's just decision to be overturned. It sends a message that paternity fraud is acceptable.
One has to ask how the mother, who enjoyed taxpayer-funded representation during the historic four-day trial in the County Court in 2002, can now engage one of the most expensive legal firms in Melbourne, Clayton UTZ, to run her appeal.
Feminists who argue for special pleading for women, who fight to lower the bar of responsibility for women, do nothing for women's equality. Equality demands equal rights and equal responsibilities.
In an example of obfuscation and "blaming the victim" (a phrase often rightly used by women's rights activists to describe, for example, the treatment the law sometimes inflicts on those who've experienced sexual assault), the Victorian Women's Legal Service Centre's Joanna Fletcher called the Magill case an "ugly affair" that should not have been taken to court.
Underlying her argument was the idea that the non-biological father should be held responsible for hurt the children experienced because of the litigation.
Does that mean that both biological parents, Meredith McClelland-Magill and DR, are off the hook ? And that the poor cuckolded victim who gave his love, trust and hard-earned money is the guilty party?
Meredith apparently knew that DR was the father of the two youngest children. She tried to get him to acknowledge paternity. He refused, but Meredith still just kept up the affair anyway.Lied to
Her two younger children were lied to by the one person they should have been able to trust - their own mother.
In the meantime, Liam Magill has received not one cent of government assistance in his quest for justice. Legal Aid have refused to help him because it is a civil case. None of the money Liam paid for the support of DR's children has been refunded.
The Child Support Agency created an internal "phantom debt" to offset the years of overpayment for DR's two children. The CSA has not asked DR to pay Liam anything, and they will not ask the mother to repay the money either. They have stated this in writing.
Let us hope that the High Court will find that the "law of deceit" does apply in Liam Magill's case and that justice will be done.
In May 2005, a Frenchman won a ground-breaking ruling against his former wife and her lover, ordering them to pay back the money that he had spent on bringing up a child he had mistakenly assumed to be his own.
According to a report by Adam Sage in the London Times
(May 3, 2005), the man, named as G in the ruling, was awarded £15,600 (A$35,860) after a DNA test revealed that he was not the father of the 13-year-old child, Astrid. He had raised her as his own daughter, paying for her food, clothing, toys, schoolbooks and holidays.
The Caen Appeal Court in Normandy said that his former wife, B, from Cherbourg, had always had doubts about the identity of Astrid's father: she was unsure whether it was her husband or her lover. The judges said that she had committed a "fault" by failing to tell her husband that she had been having an affair at the time of the conception and that she did not know whose daughter Astrid was.
The court denounced the lover, named as L, who suspected that Astrid might have been his child, but who also failed to air his suspicions.Compensation
In the ruling, according to the London Times
report, the court ordered the wife and the lover to pay the former husband £15,000 (A$34,480) in compensation for the money he had spent on Astrid. The court also ordered them to pay a further 8,000 Euros (A$12,670) to cover what it described as the "moral and psychological damage suffered by G, who finds himself deprived of his fatherhood of Astrid".
Maître Gérard Méjean, a French family law specialist, said: "In this type of case, mothers who cheat are condemned to pay. They can no longer make and unmake fathers with impunity."