Magill v Magill

Tort – Deceit - Paternity - Whether tort of deceit can be applied in marital context in relation to false representations of paternity - Where false representations were made by wife in course of marriage concerning paternity of children born during marriage - Where birth notification forms completed by wife represented husband to be father - Where DNA testing after marriage ended revealed two children of the marriage were not the biological children of the husband - Where husband claimed damages in deceit for loss of earnings, loss of use of moneys, personal injury and pain and suffering - Relevance of history of tort of deceit - Relevance of abolition of inter-spousal immunity in tort by Family Law Act 1975 (Cth) - Relevance of statutory scheme intended to minimise role of fault in determining legal rights and liabilities following breakdown of marriages - Relevance of statutory regime under Family Law Act 1975 (Cth) for repayment of moneys wrongly paid for child support - Relevance of public policy considerations.

Statute – Statutory construction - Family Law Act 1975 (Cth) - Whether tort of deceit is excluded from applying between spouses by the Family Law Act 1975 (Cth) - Whether ss 119 and 120 of the Family Law Act 1975 (Cth) expressly or impliedly preclude an action for deceit by a husband in respect of false representations made by the wife during the subsistence of the marriage as to the paternity of children of the marriage.

Words and phrases – "deceit", "inter-spousal immunity", "paternity fraud".

Child Support (Assessment) Act 1989 (Cth) – ss 107, 143.

Family Law Act 1975 (Cth) – ss 43, 48, 51, 66X, 69P-69X, 119, 120.

Matrimonial Causes Act 1959 (Cth) – ss 21, 28, 44, 98.