High Court of Australia Judgment

Magill v Magill [2006] HCA 51 (9 November 2006)

http://www.austlii.edu.au/au/cases/cth/high_ct/2006/51.html

Last Updated: 9 November 2006

HIGH COURT OF AUSTRALIA

GLEESON CJ
GUMMOW, KIRBY, HAYNE, HEYDON AND CRENNAN JJ
 

LIAM NEAL MAGILL APPELLANT

AND

MEREDITH JANE MAGILL RESPONDENT

 

Magill v Magill
[2006] HCA 51
9 November 2006
M152/2005

ORDER

Appeal dismissed with costs.

 

On appeal from the Supreme Court of Victoria

Representation

N Lucarelli QC with J C Paterson for the appellant (instructed by Vivien Mavropoulos & Associates)

H M Symon SC with A J Palmer for the respondent (instructed by Clayton Utz Lawyers)

D M J Bennett QC, Solicitor-General of the Commonwealth with R M Doyle intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

 

CATCHWORDS


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 Family Law Act 1975 (Cth), ss 43, 48, 51, 66X, 69P-69X, 119, 120.
Matrimonial Causes Act 1959 (Cth), ss 21, 28, 44, 98.


 

11

GLEESON CJ. The appellant and the respondent married in April 1988. They separated in November 1992. The marriage was dissolved in February 1998. Between 1988 and 1992, the respondent gave birth to three children: a son born in April 1989, another son born in July 1990, and a daughter born in November 1991. After the separation, following an application by the respondent, the appellant made payments under the Child Support (Assessment) Act 1989 s 1433 of the Child Support (Assessment) Act, the appellant became entitled to an adjustment of child support payments to allow for past over-payments, and an extinguishment of arrears. The relevant statutory provisions operated of their own force to deal with the matter of child support liability and payments, and that matter was not the subject of the litigation with which this appeal is concerned.

2 In January 2001, the appellant commenced proceedings against the respondent in the County Court of Victoria. The cause of action sued upon was the tort of deceit. The damages claimed were of two kinds. First, the appellant alleged that he had suffered personal injury, in the form of anxiety and depression, in consequence of the respondent's fraudulent misrepresentations. Secondly, he claimed financial loss, including loss of earning capacity by reason of his mental or psychological problems, and loss related to the time he had spent with, and money he had spent on, the children under the mistaken belief that he was their father. He also claimed exemplary damages. The appellant succeeded at trial, and was awarded damages of $70,000. This did not include any amount by way of exemplary damages. The decision of the trial judge was reversed by the Court of Appeal of the Supreme Court of Victoria (Ormiston, Callaway and Eames JJA) on the ground that the appellant had failed to establish the essential elements of the tort of deceit^[1]. The appellant now appeals to this Court, seeking the restoration of the original award of damages.

3 By notice of contention, the respondent argues that the action was misconceived, and that even if, contrary to the opinion of the Court of Appeal, all elements of the common law tort of deceit otherwise had been made out, nevertheless the remedy pursued by the appellant was not available for the following reasons:
 

1. Section 119 of the Family Law Act 1975 (Cth), which permits one party to a marriage to sue the other in tort, does not apply to the tort of deceit or, alternatively, s 120 of that Act precludes an action for deceit based on a false representation of paternity.
2. The tort of deceit does not extend to claims for damages arising from misrepresentations as to the paternity of children conceived and born during the course of a marriage.

4 For the reasons that follow, I consider that proposition 1 is without substance. Proposition 2 should not be accepted, although the scope for the operation of the tort of deceit in the case of communications within the context of a marital relationship is influenced, and often limited, by that context.

The appellant's claim and the award of damages

5 At the trial, it was common ground that the father of the respondent's second and third children was a man with whom she had commenced a sexual association in September 1989 (that is, about 17 months after her marriage, and about five months after the birth of her first child). According to the respondent's evidence, she had sexual intercourse with that man once every two or three weeks until mid-1990, and less frequently after the birth of her second child. Her evidence was that when she became pregnant with her second child, she believed it was possible that this other man was the father, although when she became pregnant with the third child she believed her husband was the father. In August 1995, almost three years after their separation, the appellant learned that the respondent at least suspected that the second child was not his child. It was not until April 2000 that DNA tests confirmed that the appellant was not the father of either the second or the third child. It was then that the necessary adjustments were made in respect of past and future child support payments.

6 In September 1999, the appellant sought treatment from a psychiatrist, Dr Chong. According to the psychiatrist, the appellant presented with severe depression, from which he had been suffering for a number of months. In a report written in June 2002, Dr Chong said:
 

"Mr Magill told me that his depression and anxiety state [sic] started in the setting of on-going stress from the Family Court regarding 'child support', financial difficulty and unreasonable demand [sic] from his ex-wife. He was so stressed by the 'child support agency' that he has had persistent nightmares about them threatening and harassing him. His depression and the accompanied [sic] panic and anxiety symptoms became worse when he found out with DNA testing ... that 2 of his 3 children were not fathered by him. This knowledge had devastated Mr Magill, causing him a lot of emotional turmoil."

7 Without doubt, the appellant's wife deceived him, but the hurtful deception was in her infidelity, not in her failure to admit it. The devastation he mentioned resulted from his knowledge of the truth when finally it was made known to him. That knowledge, in turn, came to him at a time when he was already distressed by the consequences of the breakdown of his marriage.

8 When the appellant's lawyers sought to express his complaints in legal form, in terms of the tort of deceit, they made the following allegations. (The original complaints made some references to the issue of child support, but at the trial these were agreed to be immaterial.) In late 1989, the respondent represented to the appellant that he was the father of the second child. In early 1991, the respondent represented to the appellant that he was the father of the third child. Both representations were false. On the faith of the representations the appellant believed he was the father, and altered his position to his detriment. The representations were made fraudulently, with the respondent either knowing they were false or recklessly not caring whether they were true or false. At the time of the representations the respondent intended the appellant to rely on them. As a result of the representations the appellant suffered loss and damage. The damage included severe anxiety and depression and loss of earnings.

9 At the trial, much attention was given to the need to particularise and prove the representations on which the appellant sued. This exposed a difficulty in fitting the case into the mould of the common law tort of deceit. From one point of view, the appellant's claim that he was misled about the paternity of the children may have appeared easy to establish. The problem was to identify a representation by the wife. It may be inferred that, while the parties were living together, and at least for a time thereafter, the respondent, by her conduct, would have said and done things many times, and in many different ways, that reinforced the appellant's assumption that he was the father of all three children. In circumstances where he obviously believed he was the father, and accepted the responsibilities of fatherhood, her silence would have contributed to his belief. Yet, in the absence of a legal or equitable obligation to tell the truth, silence of itself does not amount to misrepresentation^[2]. The trial judge would have appreciated that a finding of a legal or equitable duty in the respondent to disclose her infidelity would take him into deep waters. He made no such finding. He put his conclusion as to the representations of paternity upon a very narrow basis. Soon after the birth of each of the second child and the third child, the respondent signed, and gave to the appellant to sign, a form of Notification of Birth addressed to the Registrar of Births, Deaths and Marriages. The forms described the appellant as the father and the respondent as the mother. This conduct of the respondent was found to constitute, in each case, the representation by the respondent to the appellant that he was the father of the child. That, in turn, had consequences for the approach that was taken to the issues of inducement, and damage.

10 When the appellant was asked in evidence why he believed he was the father of the two children, he made no reference to the birth notification forms, or to any other specific words or conduct of his wife. He said:

"Well, I had no reason not to believe [that I was the father]. I watched all three of the children born. I was present at the hospital when all three children were born ... and I had no reason to believe that any of [the] children weren't mine."

11 Having found that the representations were made, the judge noted that it was not in dispute that they were false. This was established by the DNA testing.

12 As to the respondent's state of mind concerning the representations, the trial judge found:
 

"I am of the view that the evidence points very strongly in favour of the conclusion that she did know that her husband was not the father of either of the 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 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."

13 After referring to the medical evidence, the trial judge summed up his conclusion as to the appellant's condition as follows:
 

"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 the marriage break up itself on any view of it would be an extremely disturbing thing to befall anybody. And the situation [is] simply made worse when he discovers the truth about the paternity of the children, and discovers that he has been misled over the period of years as to his paternity."

14 That description of the appellant's harm, which accords with the way he himself expressed his health problems to Dr Chong, amounts to the proposition that the distress he suffered from the breakdown of his marriage and the subsequent disputes with his wife was exacerbated by the discovery that he had been misled about the paternity of two of the children.

15 The basis of the appellant's claim to have suffered economic harm, apart from the presently irrelevant matter of the overpayments of child support, is not clear, either from the record of the trial or the reasons of the trial judge. The claim appears to have included consequential loss flowing from the disability that resulted from the appellant's depression and anxiety, such as some modest loss of earning capacity. There was also an attempt to quantify "expenses involved in supporting the two children" and a claim for "compensation for time off work attending to them at birth". The trial judge was unconvinced by the attempts to quantify these claims, but considered the appellant was entitled to something. The appellant was awarded $30,000 "by way of general damages for pain and suffering, [and] loss of enjoyment of life, past, present and future", $35,000 for past economic loss, and $5,000 for future economic loss. The judgment was for $70,000.

The tort of deceit

16 In Donoghue v Stevenson^[3] Lord Atkin said that "acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief". Various control mechanisms are adopted by the common law to "limit the range of complainants and the extent of their remedy"^[4]. The most obvious example is the requirement, in the case of the tort of negligence, of a duty of care.

17 The tort of deceit provides a legal remedy for harm suffered in consequence of dishonesty, but, as Viscount Haldane explained in Nocton v Lord Ashburton^[5], the concept of "fraud" is wider in some legal contexts than in others. He said^[6]:
 

"Derry v Peek simply illustrates the principle that honesty in the stricter sense is by our law a duty of universal obligation. This obligation exists independently of contract or of special obligation. If a man intervenes in the affairs of another he must do so honestly, whatever be the character of that intervention. If he does so fraudulently and through that fraud damage arises, he is liable to make good the damage. A common form of dishonesty is a false representation fraudulently made, and it was laid down that it was fraudulently made if the defendant made it knowing it to be false, or recklessly, neither knowing nor caring whether it was false or true. That is fraud in the strict sense." (emphasis added)

18 His Lordship's reference to intervening in the affairs of another, and through fraud, causing damage, reflects the business context in which the action on the case for deceit emerged, and in which it had, and still has, a natural place. The elements of the tort fit comfortably into such a setting. Pasley v Freeman^[7], in 1789, was an action by a plaintiff who was induced to extend credit to an insolvent third party on the faith of the defendant's fraudulent representation that the third party was a person of financial substance. The action succeeded even though there was no contract of suretyship. It was the combination of fraud and damage that entitled the plaintiff to sue. In 1837, in Langridge v Levy^[8], Parke B said that the principle laid down by Pasley v Freeman was that a "mere naked falsehood" would not give a right of action, but if a falsehood is told with an intention that it should be acted upon by the party injured, and that party acts upon it in a way that produces damages to him, an action will lie.

19 In the Third Edition (1868) of Bullen & Leake's Precedents of Pleadings^[9] there appear references to a series of cases exemplifying actions for damages for fraudulent misrepresentation. They are cases in a business context. Not all claims in deceit, however, have involved cases where loss resulted from a contractual dealing. In Richardson v Silvester^[10], in 1873, the defendant caused to be published an advertisement to the effect that a certain farm was available for letting. The plaintiff, at some expense to himself, inspected the property. It was alleged that the advertisement was deliberately false. It was held that the plaintiff, on the facts alleged, had a cause of action to recover, by way of damages, his wasted expenses.

20 Not all actions said to have been allowed on the principle of Pasley v Freeman were commercial in nature, although Wilkinson v Downton^[11], decided in 1897, and Janvier v Sweeney^[12], decided in 1919, which were cases of deception causing nervous shock, would probably now be explained either on the basis of negligence, or intentional infliction of personal injury^[13].

21 Almost 200 years after Pasley v Freeman, the modern common law began to refine the principles according to which damages may be recovered for loss resulting from certain kinds of misrepresentation that were not fraudulent but merely careless. In Hedley Byrne & Co Ltd v Heller & Partners Ltd^[14], the concept of the duty of care, a control mechanism by which the law limited the range of complainants, was explored in its application to determining who might sue in respect of financial harm suffered in consequence of another person's careless statements. The capacity for careless advice or information to cause harm is extensive. The search for a satisfactory exposition of the concept of duty of care in this context resulted in a division of opinion in the Privy Council in Mutual Life & Citizens' Assurance Co Ltd v Evatt^[15]. The actual decision in that case is presently immaterial; what is significant is the kind of problem it exemplifies. The problem could well arise in a domestic context. As Dickson CJ pointed out in Frame v Smith^[16], "[i]t is notorious that free, and not always disinterested and wise advice abounds in a family setting". So, in some family settings, does misleading conduct. The duty of care controls potential liability for carelessness. False representations about paternity could be the result of carelessness rather than deliberate fraud. Furthermore, in domestic and other personal relations, in between carelessness and deliberate fraud there may be conduct which is not easy to classify in simple moral terms.

22 If, in the area of actionable deceit, there is to be a control mechanism which, like the duty of care in negligence, limits the range of complainants, then it is difficult to see, as a matter of legal principle, as distinct from legislative fiat, how the limitation could operate by reference to one specific kind of representation. Plainly, representations about paternity relate to a sensitive issue, but there are other subjects of representation that could also relate to topics of sensitivity.

23 False representations of paternity could be made in a variety of circumstances, some of which might be closely linked to questions of property, or financial undertakings. They could be made before, during, or after marriage. They could be made between parties who are negotiating a pre-nuptial contract, or a separation agreement, or a divorce settlement. They could be made for the specific purpose of inducing a certain kind of dealing with property, or a certain kind of financial commitment. The distinction between business affairs and domestic affairs is not always clear cut. People, in anticipation of, during, or after, marriage enter into financial arrangements, and create rights and obligations which are plainly intended to have legal consequences. Not all people who cohabit in a domestic relationship intend to marry. Not all married people cohabit in a domestic relationship. Some might intend to divorce, but until their marriage is dissolved by court order they remain married. Some married people separate without any intention to divorce. Marriage is not merely one of a number of alternative forms of domestic relationship. Among other things, it is a matter of legal status. Certain formalities are required for its formation and its dissolution. It is attended by legal requirements of exclusivity, and publicity. In Australia, a person may have only one husband or wife at any one time. Marriages must be recorded on a public register^[17]. Marriage is a context in which the law of deceit, in many circumstances, may be difficult to apply, but in modern social conditions it is difficult to mark it out as a zone of special immunity from liability for one particular kind of tort, or one particular form of deceit. Furthermore, representations about paternity could be made to a third party, such as a parent or relative of a putative father, with intent to induce the making of financial arrangements.

24 There is, however, an aspect of marriage that makes the topic of representations of paternity to a spouse one to be approached with particular caution. The Family Law Act 1975 (Cth), in s 43, speaks of "the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life". As Jacobs J explained in Russell v Russell^[18], the institution originated, at least in Western society, partly as a means of involving males in the nurture and protection of their offspring. Blackstone, in his Commentaries^[19], described marriage as "built on this natural obligation of the father to provide for his children". The structure of marriage and the family is intended to sustain responsibility and obligation. In times of easy and frequent dissolution of marriage, the emphasis that is placed on the welfare of the children reflects the same purpose. The appellant, when asked to explain why he believed he was the father of his wife's children, said that he had no reason not to believe it. As a married man, he was living in an environment that was designed to reinforce his parental role and obligations. There was an artificiality involved in the search for representations that he was the father of the two children. His wife had no need to make any such representations. The circumstances of their relationship constantly conveyed to him, and reinforced, that message, as they were meant to do. In many marriages, an express representation of paternity is likely to be made only if there is some reason for doubt. Few husbands expect, or seek, from their wives, assurances of paternity. Such assurances, if volunteered, would often raise, rather than resolve, suspicions. Nevertheless, there could be cases, even if exceptional, in which such assurances are sought, and given, in circumstances where there is no reason in principle to deny a remedy.

Family Law Act 1975 (Cth) ss 119, 120

25 The Family Law Act provides:

"119. Either party to a marriage may bring proceedings in contract or in tort against the other party.
120. After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage."

26 The legal and historical context of those provisions makes it plain that they do not have the consequences suggested in the respondent's notice of contention.

27 Section 119 entirely abolished the old spousal immunity based upon the concept that, at law, husband and wife are one^[20]. The immunity disappeared from the law by degrees. It is unnecessary to trace the origins of the concept, or the stages by which it was broken down. With s 119, it went completely. Actions in contract or tort between spouses, or former spouses, are now commonplace.

28 As was noted above, the status of marriage may exist even when the parties to it are completely at arm's length. People who are married, happily or unhappily, may sue one another for the full range of torts. It is impossible to accept that the legislation, sub silentio, makes fraud an exception. Such a consequence would be absurd. Why should a woman, who is about to enter into a separation agreement with her husband, not have the full extent of the law's protection, including its protection against fraud? Why she might be able to sue him for negligent misrepresentation, but not for fraudulent misrepresentation, defies rational explanation.

29 Section 120 abolishes certain causes of action against third parties, which had no direct relationship to the tort of deceit. They reflected a view of the relationship between husbands and wives that is no longer held. Section 120 might have been in point had the appellant's lawyer dusted off some old law books and attempted to bring an action against the father of the two children in question, but it has nothing to do with the present case.

30 There is therefore no occasion to consider the appellant's challenge to the constitutional validity of these two sections. They do not stand in the path of his claim.
Proposition 2 in the notice of contention

31 The respondent's second proposition is similar to an argument that was considered, and rejected, by Stanley Burnton J in England in 2001. The case was P v B (Paternity: Damages for Deceit)^[21].

32 It is not clear whether the respondent's contention is that representations as to paternity occupy a unique place in the law of deceit. If they are only a particular example of a wider class of representation, it was not made clear what that class is said to be. The respondent's contention would solve the present case, but if it is only a particular application of a more general principle then that principle was not stated.

33 The facts of the present case show the difficulties that often will be involved in attempting to deal with a grievance such as that of the appellant under the rubric of actionable deceit. Yet it is possible to imagine cases in which the elements of the tort would be recognisable, and justice would demand a remedy. The argument in P v B was expressed in terms of "cohabiting couples". Not all married people fall within that description. Some, whether or not they intend to divorce, deal with one another in circumstances where their respective legal rights and obligations are to the forefront of their concerns. They may be communicating through lawyers. In such a context, representations may be sought and given on the clear understanding that they are intended to be acted upon, perhaps in respect of matters affecting rights of property or financial obligations. The parties may be as much at arm's length as people who are dealing in the business context in which the tort of deceit originated.

34 There are problems involved in inappropriate intrusion by the law of deceit into the domestic context. However, as a suggested solution to those problems, the respondent's proposition is both too wide and too narrow. Whether it is put in terms of representations of paternity, or widened to cover extra-marital sexual relations, the same question remains. Why single out that particular kind of representation? There are many other kinds of representation that may be made in a domestic context about matters that are regarded by the parties as intimate and sensitive.

35 One of the obvious difficulties about the topic of paternity, or the wider topic of sexual infidelity, (a difficulty that is not peculiar to those topics), is the danger of creating something very close to a legal duty to disclose facts in circumstances where there could be a serious question about the existence of a corresponding ethical obligation. With hindsight, we know that the marriage of the parties to the present proceedings later broke down. Suppose it had not broken down. Suppose that, partly in consequence of the respondent's failure to disclose her infidelity, the marriage had remained intact. Would the respondent at some point have been under an obligation to reveal the truth? It may be one thing to say that, when the respondent claimed that the appellant was legally bound to make child support payments, she ought to have told him that he was not the father of two of her three children. Yet the appellant's case implies that, when she handed him the notification of birth forms to sign, at a time when the marriage was intact, she had a duty to tell him. The Family Law Act declares the need to preserve and protect the institution of marriage. 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. There is no foundation, either in principle or authority, for the recognition of a general duty of that kind. That, however, is not to deny that such a duty could exist in particular circumstances.

36 Finally, there is a difficulty about proposition 2, once it is accepted (as it should be) that s 119 of the Family Law Act applies to all forms of tort. Since Parliament has abrogated, in general terms, spousal immunity, judicial creation of a new form of immunity, applicable to spouses but limited in its operation to a certain kind of tort, or a certain kind of representation, is inconsistent with the legislation. Of course, the legislative reference to tort picks up developments in the common law as they occur from time to time. Yet the creation of an inflexible exception to the general right given by s 119, by reference to a certain kind of deceit, regardless of the circumstances of the individual case, contradicts s 119.

The elements of actionable deceit as applied to the appellant's claim

37 The elements of the tort of deceit were stated by Viscount Maugham, in Bradford Third Equitable Benefit Building Society v Borders^[22], as follows (omitting his Lordship's citation of authority):
 

"First, there must be a representation of fact made by words, or, it may be, by conduct. The phrase will include a case where the defendant has manifestly approved and adopted a representation made by some third person. On the other hand, mere silence, however morally wrong, will not support an action of deceit. Secondly, the representation must be made with a knowledge that it is false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true. Thirdly, it must be made with the intention that it should be acted upon by the plaintiff, or by a class of persons which will include the plaintiff, in the manner which resulted in damage to him. If, however, fraud be established, it is immaterial that there was no intention to cheat or injure the person to whom the false statement was made. Fourthly, it must be proved that the plaintiff has acted upon the false statement and has sustained damage by so doing."

38 His Lordship's reference to "mere silence" contemplates, by way of contrast, the possibility of a case where there is a legal or equitable duty to speak and disclose the true facts.

39 The courts have also insisted on specificity and particularly in pleading allegations of fraud. In Lawrance v Norreys^[23], Lord Watson quoted the rule expressed by Earl Selborne in Wallingford v Mutual Society: "General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any Court ought to take notice." Lord Watson added: "There must be a probable, if not necessary, connection between the fraud averred and the injurious consequences which the plaintiff attributes to it; and if that connection is not sufficiently apparent from the particulars stated, it cannot be supplied by general averments."

40 The author of McGregor on Damages^[24] points out that, reflecting the tort of deceit's close connection with contractual situations, most claims for damages in this area are for pecuniary loss resulting from acting in reliance on a misrepresentation by entering into a contract with the defendant or a third party. However, possible forms of pecuniary loss are not limited to such circumstances. Lord Atkin, in Clark v Urquhart^[25], said:
 

"I find it difficult to suppose that there is any difference in the measure of damages in an action of deceit depending upon the nature of the transaction into which the plaintiff is fraudulently induced to enter. Whether he buys shares or buys sugar, whether he subscribes for shares, or agrees to enter into a partnership, or in any other way alters his position to his detriment, in principle, the measure of damages should be the same, and whether estimated by a jury or a judge. I should have thought it would be based on the actual damage directly flowing from the fraudulent inducement". (emphasis added)

41 Harm may result from a course of action induced by a fraudulent misrepresentation, even though it has nothing to do with questions of contract or with inducement to undertake financial obligations. An example is Mafo v Adams^[26] where the plaintiff was fraudulently induced to undertake an unpleasant journey, and was awarded compensation for the inconvenience and discomfort. (The case of Richardson v Silvester^[27], earlier mentioned, was a case where a plaintiff was compensated for the expense of a fraudulently induced journey.) There is no reason in principle why the harm for which the tort may provide compensation should not include personal injury, or why personal injury should not include psychiatric injury, but the harm for which damages are awarded is the "actual damage directly flowing from the fraudulent inducement", that is to say, the damage directly flowing from the alteration of the plaintiff's position which occurred as a result of the inducement. Distress, disappointment, frustration and anger may all be natural responses to discovery of deception, but the tort of deceit does not set out to compensate people for wounded pride or dignity, or for the pain that results from broken illusions.

42 As the Victorian Court of Appeal held, in a number of respects the appellant's case, as accepted by the trial judge, failed to establish the elements of the tort of deceit. These deficiencies are all significant, but they reveal a deeper problem with the appellant's case. It will be necessary to return to that problem after having measured the appellant's case against the generally accepted requirements of the tort. The appellant was attempting to press into service, in support of a private and domestic complaint, a cause of action that was unsuited for the purpose. This is not because marital relations are a tort-free zone, or because actionable deceit can never occur between cohabiting parties or in respect of questions of paternity or marital or extra-marital relations. It is because the law of tort, like the law of contract, is concerned with "duties and rights which can be dealt with by a court of justice"^[28], and the appellant's case was difficult to accommodate to that setting.

43 First, as to the representations found by the trial judge, reference has already been made to the narrow and artificial basis upon which the appellant's case was accepted. The respondent simply handed to the appellant, for signature, routine administrative forms notifying the public authorities of the birth of each child, and conferring on them the surname of Magill. In his evidence, the appellant did not seek to relate his belief in his paternity to the signing of the birth notification forms, or to any other particular words or conduct on the part of the respondent. It was the failure to disclose her extra-marital relations and their possible connection with her pregnancies that was the critical element in the deception. Yet, unless it can be said that there was then (that is, in effect, when the children were born) a legal or equitable duty to disclose the truth, her silence did not amount to a representation. After the marriage had broken down, and when the matter of child support payments arose, there may have been a duty of disclosure; but the appellant was not claiming to recover the child support payments, and the trial judge made no finding on that basis.

44 Although there was no direct challenge in this Court to the trial judge's conclusion as to fraudulent intent at the time of the signing of the birth notification forms, it may be remarked, in passing, that the evidence raised some serious questions, which were not the subject of detailed findings, about that issue. Indeed, it is not entirely clear what was found to be the respondent's state of belief, at the times when the forms were signed, concerning the paternity of each child. Even some years later, according to the evidence, she was referring in a diary to suspicions. At the trial, she said that she thought the man with whom she had been having extra-marital relations might have been the father of the second child, but she did not think he was the father of the third child. Because the matter was not raised as an issue between the parties until some years later, the respondent might not have attempted to resolve the question in her own mind, at the time of the signing of the birth notification forms. Her state of mind on the question of paternity, and the wisdom of revealing it, at the time of the birth of each child, may have been more complex than the reasons of the trial judge acknowledge. However, that is a topic that was not considered in any detail in argument in this Court.

45 Secondly, once it became clear that the making of the child support payments was not an aspect of the appellant's claim, the course of conduct, or change of position, in which he was induced to engage by reason of the (assumed) false representations of paternity made soon after the children were born appears to be that he remained in the marriage and accepted his wife's second and third children as his own. Although it was not made explicit, presumably underlying the appellant's claim is the suggestion that if, at the time of the birth of the second child, he had been made aware of his wife's infidelity and of the possibility that another man was the father of the child, he would have acted differently. In what way he would have acted differently is not clear.

46 Thirdly, there is the related question of damage. The appellant claimed, and was awarded, damages for two kinds of harm: personal injury, and pecuniary loss. Accepting that the evidence established recognisable psychiatric injury in the form of depression and anxiety, the explanation given by the appellant, and the finding made by the trial judge, as to the cause of that harm does not identify damage directly flowing from an alteration of the appellant's position occurring as a result of the inducement. His depression resulted from the distressing circumstances surrounding the breakdown of the marriage; distress that was exacerbated by his later discovery of the truth concerning his wife's extra-marital relations and the paternity of two of her three children. The appellant's claim for pecuniary loss took two forms. The first was consequential, and dependent, upon the claim for damages for personal injury. The second seems to have involved an attempt to show that, as a result of being misled into treating the second and third children as his own, the appellant devoted time to them that could have been used for more remunerative purposes, and outlaid moneys for their food, clothing and other necessities. Acting, at least for a few years, as the father of the two children cost the appellant money. The amount of the loss was not shown with any degree of cogency, and it is not possible, from the reasons of the trial judge, to see the extent to which it was reflected in the amount of $70,000 awarded by way of damages.

47 The Court of Appeal was right to conclude that the elements of actionable deceit were not made out. The case, however, was more fundamentally flawed, and the difficulties in relating the appellant's claim to the cause of action on which he sued were symptomatic of a more general problem which is likely to affect many such claims.

The bounds of the legal remedy

48 It has already been pointed out that, if a husband were to claim that he had suffered injury in consequence of careless misrepresentations made to him by his wife, whether they were representations about intimate matters, or whether they took the form of bad investment advice, the law would undertake a close examination of the circumstances in which the representations were made in order to see whether there was a legal duty of care. That is because, underlying the law of negligence, there is a conception of legal responsibility, based upon the idea of reasonableness, which reflects social conditions and standards^[29]. Just as there are circumstances in which it is not reasonable to expect people to act under the threat of legal responsibility for carelessness, so there are circumstances in which personal relations are governed by ethical principles that do not contemplate, and may be incompatible with, legal responsibility and the risk of legal sanction. The law of tort imposes obligations, often regardless of any intention of the parties to enter into legal relations with one another. If a motorist injures a pedestrian, the motorist will not have intended to enter into legal relations with the pedestrian. Yet the act of driving a car on a public road is one that is generally understood to be attended with possible legal consequences, and the nature of the motorist's duty usually is uncomplicated by conflicting responsibilities. Underlying the legal remedy for deceit there is a duty of honesty, perhaps more general in its ordinary application than a duty to take care to avoid harming others. Yet the ethical content of the duty is never measured without regard to the context in which a party acts, and community standards do not require the imposition of legal consequences regardless of such context. For example, finding a false representation, made with fraudulent intent, in a marital context, or in the context of some other personal relationships, in certain circumstances may impute an obligation of disclosure, regardless of other interests and consequences, where none exists.

49 The matters which an individual party to a marriage might properly regard as intimate and private are not limited to questions of paternity of children of the marriage, or sexual fidelity, or to events that occurred during the marriage. Finding a duty to disclose the truth about some matters would be inconsistent with the ethical context in which such a judgment must be made. Furthermore, the problem goes beyond questions of disclosure. Imposing legal consequences upon behaviour in such a relationship also may be inconsistent with the subjective contemplation of the parties and with public policy as reflected in legislation. In that connection, the extensive scheme of regulation of the legal incidents of the marriage relationship contained in the Family Law Act, based as it is largely upon a policy of minimising the importance of questions of "fault", forms an important part of the setting in which judgments about dishonesty, and actionable damage, must be made. The application of the common law of deceit to marital relations is not impossible, and there are no rigidly defined zones of exclusion, but attempts to construct legal rights and obligations in an unsuitable environment should fail, as did this attempt.

Conclusion

50 The appeal should be dismissed with costs.

51

GUMMOW, KIRBY AND CRENNAN JJ. The Victorian Court of Appeal[30] allowed an appeal brought by the respondent in this Court, Meredith Jane Magill, against a judgment in the County Court of Victoria awarding damages against her at the suit of her former husband, Liam Neal Magill, the appellant in this Court. His claim was in deceit for false representations made by her as to the paternity of the second and third children born during the course of their marriage.

The background

52 The issues of principle debated on the appeal to this Court require consideration of the proper scope in the common law of Australia for the tort of deceit in domestic relations, in particular where the dispute is between spouses and respects the paternity of a child apparently born of their marriage. In that sense, the issues here lie at the frontiers of tortious liability, as they did in Tame v New South Wales^[31], Cattanach v Melchior^[32] and Harriton (by her Tutor George Harriton) v Stephens^[33]. The treatment by this Court of the issues presented on those appeals illustrates the wisdom, when placed at a frontier, of taking a vantage point to look back to the commencement of the legal journey and to what developed thereafter.

53 The tort of deceit in its modern form first appeared in England at the end of the 18th century. At that time, an action in tort of the nature of that between the present appellant and respondent would have been unthinkable for various reasons. First, no act committed by one spouse against the other during marriage could be a tort: the reason, affirmed as late as 1876, was the fundamental and general principle of the common law that spouses "are one person"^[34]. In his dissenting judgment in Wright v Cedzich^[35], Isaacs J spoke with evident approval of Bentham's criticism of the use of such a "quibble" as the "nonsensical reason" for legal propositions respecting the matrimonial condition.
54 Secondly, there was the long-standing common law presumption of legitimacy, of great importance at a time before modern legislation such as s 3 of the Status of Children Act 1974 (Vic)^[36], and when legal rights, particularly of inheritance, depended upon the status of legitimacy. Lord Mansfield, when explaining in Goodright v Moss^[37] why a parent could not give evidence the effect of which would be to bastardize a child, said^[38]:
 

"As to the time of the birth, the father and mother are the most proper witnesses to prove it. But it is a rule, founded in decency, morality, and policy, that they shall not be permitted to say after marriage, that they have had no connection, and therefore that the offspring is spurious; more especially the mother, who is the offending party."

55 Statute has intervened. That part of the law of evidence is no more^[39]. Nor is the common law principle respecting the single legal personality of spouses. Hence, it might be thought that there had been an expansion in the area for the operation of the tort of deceit beyond that which it occupied when it emerged in its modern form in Pasley v Freeman^[40].

56 However, other things have remained constant. The law respecting domestic relations was heavily influenced in England by the ecclesiastical courts before 1857 and by the courts of equity. In both courts, much emphasis has been placed upon the importance of the trust and confidence between spouses and the delicacy of the married relationship^[41], and more recently, courts of equity and courts more generally have also considered other adult, long-term, intimate, personal and sexual relationships^[42].

57 The tort of deceit has had quite different origins and applications. The position is explained by Professor Fleming^[43]:
 

"Deceit, as an independent and general cause of action in tort, is of relatively novel origin, although traces of it are encountered as early as the 13th century when a writ of that name became available against misuse of legal procedure for the purpose of swindling others^[44]. Later this remedy expanded and played a modest part in developing the incipient law of contract, principally in connection with false warranties^[45]. Its scope, however, remained confined to direct transactions between the parties until in 1789, in Pasley v Freeman^[46], it was freed from this link with contractual relations and held to lie whenever one person, by a knowingly false statement, intentionally induced another to act upon it to his detriment. There, the plaintiff had made an inquiry from the defendant concerning the financial standing of a merchant with whom he was negotiating for the sale of 16 bags of cochineal and received the assurance that he could safely extend credit, although the defendant well knew the party to be insolvent. Despite the want of any contractual bargain with the plaintiff, the defendant was held to answer for the loss in an action for deceit. At about the same time, the remedy for breach of warranty was absorbed by the action of assumpsit and henceforth regarded as purely contractual^[47]. Thereafter, the two theories of misrepresentation began to diverge and are now quite distinct. The tort action for deceit requires proof of fraudulent intent, while breach of contractual warranty became independent of any intention to mislead or other fault."

58 The significance of the foregoing for the issues that arise on this appeal is apparent from the further observations by that learned author^[48]:
 

"Nevertheless, the close association of deceit with bargaining transactions has inevitably coloured the elements of the action, which largely reflect the ethical and moral standards of the market place as they relate to permissible methods of obtaining contractual or other economic benefits and of inflicting pecuniary loss through reliance on false statements. Not that the action is inapplicable to personal injuries or harm to tangible property,^[49] but such instances are rare, and the typical cases in which the action is enlisted involve pecuniary loss."

59 An uncontroversial modern statement of the elements to be proved in an action in deceit is that appearing as follows in the latest edition of Clerk & Lindsell On Torts^[50]:
 

"Where a defendant makes a false representation, knowing it to be untrue, or being reckless as whether it is true, and intends that the claimant should act in reliance on it, then in so far as the latter does so and suffers loss the defendant is liable for that loss."

60 That formulation no doubt was derived from the body of case law which followed Pasley v Freeman^[51] and was of the character described by Professor Fleming. How well it applies at the frontier of liability with which this appeal is concerned is for the consideration which will follow in these reasons.

61 However, something more first should be said of the facts and the conduct of the litigation.

The facts and the trial

62 The damages claimed by the husband included loss of earnings, loss of use of monies, damages for personal injury, namely severe anxiety and depression, and exemplary damages. The trial judge^[52] found in favour of the husband and awarded him $70,000 in damages: $30,000 for general pain and suffering; $35,000 for past economic loss; and $5,000 for future economic loss.

63 The facts are dealt with comprehensively by Eames JA in the reasons of the Court of Appeal^[53] and for present purposes they can be summarised. The husband and wife were married in 1988. During the time they were married the wife gave birth to three children. The first child, a boy, was born on 7 April 1989 ("the first son"). The second child, also a boy, was born on 30 July 1990 ("the second son"). On 27 November 1991, the wife gave birth to a girl ("the daughter").

64 The husband and wife separated in November 1992. Following the separation, the three children lived with the wife, and the husband was able to spend time with them on certain weekends, according to a mutually agreed access arrangement. The wife made an application for child support from the husband in late 1992 under the Child Support (Assessment) Act 1989 (Cth) ("the Child Support Act"). The husband generally made payments in accordance with the child support schedule, save for certain periods in 1996 and 1997.

65 Unbeknown to the husband, the wife had commenced an extra-marital sexual relationship in September 1989. Contraception was not used. The wife had had suspicions concerning the paternity of the second son, and in 1993 these were strengthened as a result of her seeing a photograph of a child of the man with whom she had had the extra-marital sexual relationship; the child bore a physical resemblance to the second son.

66 In 1995, after suffering a nervous breakdown, the wife informed the husband of her suspicion. DNA testing conducted by consent in 2000 established that the husband was neither the biological father of the second son, nor of the daughter.

67 After the paternity of the second son and the daughter had been determined, child support arrangements were adjusted, so that payments were calculated, and due, only in respect of the first son. As the husband had sufficient outstanding debt in respect of the first son as a result of his failure to meet payments in 1996 and 1997, he was not able to recover any amounts he had paid in respect of the second son and the daughter^[54].

68 The husband commenced an action in deceit against the wife, in the County Court of Victoria in January 2001. The trial took place in November 2004, and the reasons of the trial judge were delivered, and the orders made, shortly after the conclusion of the hearing. The trial judge determined that the wife had made false statements about paternity, either knowing that they were false or without any belief in their truth, or recklessly, without caring whether they were true or not, and therefore without any genuine belief in their truth. Further, according to the trial judge, the husband had established that the wife intended the husband to rely on the false statements, that the husband actually did rely on them, and that he suffered damage as a result.

69 According to the husband, the representations that he was the father of the second son and the daughter were "partly written, partly oral and partly to be implied". The husband claimed the written representations were constituted, inter alia, by the completion and presentation of birth notification forms by the wife naming the husband as the father of the second son and the daughter. The husband submitted that oral representations were constituted by conversations between him and his wife, with respect to each child, to the effect that she was pregnant, and that he was the father of the unborn child. The husband further claimed that the representations were to be implied, given that the wife failed to disclose her extra-marital sexual relationship, and failed to correct his apprehension that he was the biological father of the second son and the daughter.

70 However the trial judge's reasons referred only to the written representations in the completed birth notification forms presented to the husband for signature by the wife soon after the birth of each child. Evidence relating to the oral or implied representations was not explicitly advanced as proof of separate and discrete instances of making or repeating the false representations^[55].

The birth notification forms

71 In each of the birth notification forms in evidence, the name of the child was entered by the wife, and in the section entitled "FATHER" the wife entered the husband's name. Further down the page was a section entitled "PARENTS PREVIOUS CHILDREN". In the notification form for the second son, the name of the first son was entered in this section; and in the notification form for the daughter, the names of the first and second sons were entered.

72 At the bottom of the form for the daughter was a section entitled "DECLARATION BY MOTHER / INFORMANT". It was completed by the wife in the following way:
 

"I, Meredith Jane Magill request that the child be registered with the family name of Magill and certify that the above information is correct for the purpose of being inserted in the Register of Births and am aware that persons wilfully 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."

73 Below this was a section entitled "DECLARATION BY FATHER", which, upon presentation by the wife to him, was signed by the husband below the words:
 

"I agree to be registered as the father of the child and that the family name of the child be Magill."

74 On the reverse of the form, the following Notes appear:
 

"NOTE 1 – CHILD
Family Name: (i) If a person is registered as the father of the child, the family name of the child should be entered as the same family name as the father ...
NOTE 4 – FATHER
Where the parents are not married to each other, do not enter particulars of the father unless the form is being signed by both parents ...
NOTE 5 – PARENTS PREVIOUS CHILDREN
Enter only details of children born to or adopted by both parents of the child being registered ..." (emphasis in original)

A form in similar terms was completed in relation to the second son after his birth.

75 The following exchange regarding the birth notification forms took place between the husband and his counsel at trial:
 

"Did she show you a birth certificate? - - - All three children were born in Sea Lake Hospital and at each birth upon discharge there's a form that is filled out regarding the birth of the particular child and that was done on all three occasions of the birth of our children.
Did you see that form? - - - Yes.
Who showed it to you? - - - Well, it was shown to both of us. [The wife] filled the form out on each occasion and — naming me as the father and I had no reason to believe otherwise so I signed the particular form."

76 When asked about whether her husband would consider each form (as filled in by her showing him as father) as an assertion of the truth, the wife replied,
 

"I don't think I really thought too hard about it at all, it was a birth registration."

77 In his reasons, the trial judge described the birth notification forms as the "most direct evidence" of the making of the alleged representations. His Honour stated:
 

"It seems to me to be impossible to conclude that [the wife] could have had any real belief in the assertion that she made, and in my view she must have known that [the husband] was not the father ... 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 it to be relied upon."

78 In awarding damages, the trial judge referred to the evidence of three doctors who had treated the husband for psychiatric disorders, which included depression and anxiety, which followed from the revelation of the "painful knowledge that two of his three children [for] whom he cares and loves ... have turned out not to be his".

79 Of the wife's situation, his Honour said:
 

"[The wife] found herself in a position [in] which she [had] 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 [the wife] when presented with the form to fill in concerning notification."

The Court of Appeal

80 In allowing the wife's appeal from the decision of the trial judge, both Ormiston and Callaway JJA noted that this was an "unusual case", fought on very narrow grounds^[56], as the only representations to which the trial judge explicitly referred and which he tested against the elements of the cause of action in deceit were those representations described in the birth notification forms^[57].

81 All members of the Court of Appeal assumed that the claim in deceit had been brought appropriately^[58] and concentrated upon whether, on the facts of the case, the elements of the cause of action in deceit had been established.

82 Callaway JA found that there was no evidence on which the trial judge could find that the wife intended the husband to rely on the birth notification forms for any purpose other than signing them and agreeing that the children should be registered with the family name of Magill^[59]. Eames JA (with whom Ormiston JA agreed) determined that the only finding made by the trial judge concerned the representations in the birth notification forms^[60] and further stated^[61]:
 

"The [husband] did not give evidence that the completion of the forms induced him to do anything. Rather, his evidence was that it was his belief that he was the father that caused him to provide the financial and emotional support for the children, and that his belief in that respect was based on the whole situation of being in a marriage and his ignorance that his wife was conducting an affair. He said that had he known their paternity he would not have maintained the two children, but that evidence was not related to reliance by him on the contents of the forms.
In my view, therefore, there was no evidence that the [husband] acted in reliance on the representations in the forms, save (by inference) with respect to the naming of the children."

83 The Court of Appeal noted that of the $35,000 awarded by the trial judge for the husband's economic losses, the trial judge had awarded $10,000 for time taken off work after the births of each of the two children, and $25,000 was for "expenses incurred for the two children over the many years before their paternity was resolved"^[62]. It was also noted that the trial judge had expressly stated that he was not, in effect, refunding or adjusting child support payments^[63].

The appeal to this Court

84 In this Court, by her Notice of Contention, the wife submitted that the Court of Appeal erred in concluding that the tort of deceit extended to claims for damages arising from false representations as to the paternity of children conceived and born during the course of a marriage.

85 Arguments regarding the scope and constitutionality of ss 119 (abolishing spousal immunity in tort) and 120 (abolishing actions for "damages for adultery") of the Family Law Act 1975 (Cth) ("the Family Law Act") were also raised in that context. The Attorney-General of the Commonwealth intervened and submitted that ss 119 and 120 were valid and supported the interpretation of the sections advanced by the husband, which will be considered in more detail later.

86 In the reasons which follow, the conclusions will be reached that an action for deceit between spouses is not excluded by the provisions of ss 119 and 120 of the Family Law Act and that, while an action for deceit may be maintainable between spouses or former spouses in certain circumstances^[64], the tort does not apply to false representations made during the course of a marriage about an extra-marital sexual relationship or paternity.

87 This is for two reasons. First, speaking broadly, the Parliament has passed legislation governing the dissolution of marriage in which the determination of fault between spouses, including inquiry into their extra-marital sexual conduct, is no longer the province of the law. At the same time, in step with scientific developments, the relevant legislation facilitates accurate determination of paternity and permits the recovery of amounts wrongly paid for child support. The legislation is federal and thus applies throughout the Commonwealth. The common law of Australia in a field appropriate for further development after that legislation ought not to proceed on a divergent course^[65].

88 Secondly, conduct which constitutes a breach of promise of sexual fidelity and any consequential false representation about paternity, occurring within a continuing sexual relationship, which is personal, private and intimate, cannot be justly or appropriately assessed by reference to bargaining transactions, with which the tort of deceit is typically associated.

89 These conclusions will result in the dismissal of the appeal and make it unnecessary to determine other matters which were the subject of submissions.

Submissions

90 In argument, both parties dealt with the question in terms of whether or not there should be "an exception" to the application of the law of deceit, in the circumstances of this case. That treatment of the question reflected the course of the argument in an English case, P v B (Paternity: Damages for Deceit)^[66]. However, what has already been said in these reasons shows that what is at stake is not the creation of "an exception" to the established principles or of a "control mechanism" upon their operation. Rather, the appeal calls for a decision as to whether the action for deceit should run at all in circumstances where in previous times it could not have done so.

91 The husband submitted that there should be no exclusion, or non-application, of the law of deceit in respect of the wife's liability based on the fact that the false representations concerned the paternity of two children born during their marriage were made during the course of the marriage, and he relied on P v B (Paternity: Damages for Deceit), which has been characterised as confirming the general application of the principle encapsulated by the tort^[67]. He relied also on the plain and literal meaning of ss 119 and 120 of the Family Law Act, the text of which shall be referred to later in these reasons. Calling in aid examples of judicial reasoning from other jurisdictions, the husband argued that public policy considerations which were animated by concern for the welfare of children should not bar his action.

92 The wife submitted that a cause of action in deceit was generally relied on when a remedy was sought in respect of pecuniary losses arising from inducement to lay out money or enter a contract. It was conceded that examples could be found where deceit founded a remedy in a context which was not commercial^[68] including where deceit caused physical injury, specifically nervous shock^[69]. It was next submitted that a false representation made during the course of a marriage should be treated differently from a false representation made in a commercial context, just as agreements between spouses were not normally treated as creating legal relations^[70]. The wife also contended that an action for deceit was not apt in a continuing marital relationship because of the difficulty of establishing the requisite elements, as happened here with the element of reliance, a matter to which these reasons will return.

93 Further the wife questioned the social utility of allowing such an action when that course is weighed against the potential for damage to families and children. She also submitted that the family law regime provided for the recovery of maintenance that has been paid without legal obligation, and that it does so without allocating blame, so it was unnecessary to rely on the tort of deceit to do justice between the parties^[71]. Then it was argued that the novel reliance on an action for deceit, as here, would not have been within contemplation when s 119 of the Family Law Act was drafted; that s 119 should be read down to exclude deceit of the kind alleged here; and that ss 119 and 120, read together, exclude tortious claims inconsistent with the exercise of jurisdiction and powers provided for in the Family Law Act. The wife also relied on public policy considerations, telling against recognising an action for deceit as sought here, as adverted to in a number of decisions elsewhere; these decisions will be considered later in these reasons. It is convenient to start with a consideration of the arguments concerning ss 119 and 120 of the Family Law Act.

Sections 119 and 120 of the Family Law Act

94 Section 119 provides:
 

"Either party to a marriage may bring proceedings in contract or in tort against the other party."

95 The effect of s 119 is to abrogate rules applied at common law which flowed from the common law premise that husband and wife were one, to which reference has been made earlier in these reasons. The premise included a claim for a tort committed by one spouse against the other during or before the marriage. This spousal immunity from tortious claims has been progressively abrogated in Australia^[72] (following earlier legislation enacted in the United Kingdom^[73]). The Commonwealth submitted that there is nothing on the face of s 119 (or to be found in the relevant extrinsic material) which suggests there is a continuing spousal immunity in relation to some torts, specifically deceit, and not others. This submission is correct and must be accepted. The plain terms of the section would permit actions brought in respect of disparate intentional torts, for example trespass to the person, or deceit in the context of contractual negotiations. However, the conclusion that s 119 allows the possibility that an action for deceit now lies between spouses is inconclusive of the outcome in this case. Section 119 does not compel any conclusion that the common law must now be developed to permit recovery by the appellant in the novel way he claims.

96 Section 120 of the Family Law Act states:
 

"After the commencement of this Act, no action lies for criminal conversation, damages for adultery, or for enticement of a party to a marriage."

97 The wife submitted that s 120 prevented the husband's claim because the phrase "damages for adultery" encompassed the deceit relied on in this case; the husband rejected this construction. The Commonwealth supported the husband's construction and submitted that each of the three causes of action abolished by s 120 were once brought by an injured party against third parties, and in particular "damages for adultery" refers to a former statutory cause of action against a co-respondent^[74]. These submissions are also plainly correct and must be accepted.

98 However, s 120 does not stand in isolation. It is consonant with the entire thrust, theoretical underpinning and overall legislative purpose, of the Family Law Act, which constituted a radical alteration to the basis of family law legislation as previously enacted. The goal was to remove provisions for divorce based on fault which involved the allocation of blame and "indignity and humiliation to the parties because of the inquiry into fault"^[75]. It was for that reason that the 14 grounds for divorce contained in the preceding Matrimonial Causes Act 1959 (Cth) (which included adultery^[76]) and the four grounds of voidability (which included the wife being pregnant by a person other than the husband^[77]), were all reduced to a single ground for the dissolution of marriage, namely "that the marriage has broken down irretrievably"^[78]. It can be noted in passing that decrees of nullity can be obtained if a marriage is void^[79].

99 Further, the principles to be applied under the current legislation premised on "no-fault" divorce are set out in s 43 of the Family Law Act as follows:
 

"The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:

(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;
(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children^[[80]];
(c) the need to protect the rights of children and to promote their welfare;

(ca) the need to ensure safety from family violence; and

(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children."

100 The differences between the current family law provisions dealing with family breakdown and earlier provisions reflect profound social changes. No longer does a paterfamilias hold a "commanding position"^[81], husbands and wives are treated as equal, divorce is not dependent on findings of marital fault, and actions for any solace in respect of sexual infidelity have been abrogated.

101 Divorce is now not uncommon, and many children are part of families which include step-parents and half-siblings. Further, reflecting the language and principles of the United Nation's Convention on the Rights of the Child^[82], Pt VII, Div 1 of the Family Law Act states principles which underlie the provisions directed to the proper parenting of children. By way of example, s 60B(2)(a) of the Family Law Act provides that, subject to a child's best interests, children have "the right to know and be cared for by both their parents". It can also be noted that child maintenance orders dealt with in Pt VII, Div 7 relate to children whose parents are their biological parents, step-parents, adoptive parents, or (as defined in the Family Law Act) parents as a result of artificial conception procedures. It is sufficient for present purposes to note that the retreat by the legislature from regulating private sexual conduct between spouses, evidenced in part by s 120, has been accompanied by a correlative increase in regulation of matters affecting the welfare of children, one of which is the issue of identity.

102 While s 120 does not encompass, or expressly or impliedly forbid, the husband's action for deceit, the terms of s 120 support the argument that such an action would not seem consistent with the overall thrust, theoretical basis, and general legislative purpose of the comprehensive legislation of which s 120 is a part. This is relevant to the issue raised as to whether the common law of tort of deceit should be found by this Court to apply, in the novel way claimed, in the circumstances revealed by the evidence in this case.

103 The conclusion that ss 119 and 120 (whether considered individually or collectively) do not expressly or impliedly prohibit an action in deceit between spouses makes it unnecessary to consider an alternative argument of the husband's (if the wife's construction of ss 119 and 120 were accepted) that the provisions were unconstitutional, as beyond the powers in ss 51(xxi) and 51(xxii) of the Constitution.

Question

104 The question then becomes whether the common law action of deceit covers or should cover false representations of paternity made during the course of a marriage.

Applicable legislation

105 In the Family Law Act and the Child Support Act, Australia has a comprehensive statutory framework for dealing with marital breakdown and collateral issues affecting children. An action in deceit, as pursued here, cuts across specific provisions in the Family Law Act establishing a single ground for divorce, which excludes fault, abolishing specific actions including an action for "damages for adultery", dealing with presumptions of parentage, and providing for the rebuttal of those presumptions (particularly by determination of paternity by scientific testing), as well as further provisions in both the Family Law Act and the Child Support Act allowing for the recovery of amounts paid, or property transferred or settled, under maintenance orders, in respect of a child who is not the biological child of the father.

106 Turning to the presumptions of parentage^[83], relevantly, a child born to a woman during a marriage is presumed under the Family Law Act to be her husband's child (s 69P) and a presumption of parentage arises from the registration of a birth (s 69R). The Family Court may make orders compelling the production or giving of evidence relevant to parentage (s 69V) and it may compel parentage testing (ss 69W and 69X) and make consequential declarations (s 69VA).

107 Reference has been made earlier in these reasons to the common law presumption respecting legitimacy and to the view on the subject of Lord Mansfield, expressed shortly before Pasley v Freeman^[84] launched the modern tort of deceit.

108 Until the development of medical knowledge and technology for objectively determining paternity, the presumption of legitimacy remained strong^[85] as demonstrated by Russell v Russell^[86], where as late as 1924 Lord Mansfield's rule operated to preclude the reception of evidence of adultery in divorce proceedings. However, the strength of the common law presumption declined over time to the point where it was held in 1970 that it "merely determines the onus of proof"^[87] in proceedings. In any event, in Australia, Lord Mansfield's rule was abrogated by statute^[88]. What lay behind the deconstruction of the rule was not only changed preconceptions of "decency and morality" in respect of illegitimacy and adultery, but also advances in medical knowledge. The capacity to exclude paternity by blood testing of a child and its parents, which emerged before World War II, was seen as a technological development of particular relevance to affiliation proceedings^[89]. It was inevitable that this would lead to greater emphasis on the biological or genetic connection between parent and child in the context of the dissolution of marriage and consequential orders for the maintenance and support of children^[90]. That development has been followed more recently by the ability to determine paternity with a greater degree of probability than was possible with blood tests, by testing based on analysis of DNA (deoxyribonucleic acid), the molecule which contains the genetic information inherited by children from their parents. The position has now been reached that the statutory presumptions for determining a child's parentage, as a matter of law (ss 69P-69T) may be rebutted (s 69U) by determining parentage scientifically through DNA testing (s 69W-69X).^[91]

109 The conduct of the wife in this case, both in relation to the birth notification forms (and her continuing silence, until 1995, about her extra-marital sexual relationship during the marriage) was not inconsistent with Lord Mansfield's rule once flowing from the presumption of legitimacy. However, it is the availability of more reliable DNA testing of paternity which has given rise to the husband's novel application to rely on an action for deceit in his particular circumstances.

110 Further, under s 143(1) of the Child Support Act^[92] payments can be recovered where child support has been paid by a person who is not liable, or who subsequently becomes not liable. A court has a discretionary power to make such orders as it considers just and equitable for the purposes of adjusting or giving effect to the rights of the parties and the child concerned^[93]. Section 66X of the Family Law Act also contains provisions enabling orders for the repayment of child maintenance which has been paid by a person who is not a parent or step-parent of the child^[94]. In this manner, the legislature has evinced an intention to deal with the economic loss caused by a wife to a husband, after the breakdown of their marriage, in circumstances such as those arising here, namely payments for child support or maintenance. It can be noted that these amounts are not coterminous with the damages for economic losses awarded by the trial judge as described earlier in these reasons.

Development of the tort of deceit

111 Significant developments of the tort of deceit in the last quarter of the 19th century arose out of the increased use of companies as suitable vehicles for the conduct of commercial activity, and representations to be commonly found in prospectuses and like documents.

112 In the Court of Appeal below, both Callaway JA^[95] and Eames JA^[96] referred to the familiar passage in Lord Selborne's reasons in Smith v Chadwick^[97]:
 

"... I conceive that in an action of deceit ... it is the duty of the plaintiff to establish two things; first, actual fraud, which is to be judged of by the nature and character of the representations made, considered with reference to the object for which they were made, the knowledge or means of knowledge of the person making them, and the intention which the law justly imputes to every man to produce those consequences which are the natural result of his acts: and, secondly, he must establish that this fraud was an inducing cause to the contract; for which purpose it must be material, and it must have produced in his mind an erroneous belief, influencing his conduct."

113 This passage was subsequently extracted in the reasons of Lord Herschell in Derry v Peek^[98], after which his Lordship went on to explain^[99]:

"First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made."

114 The modern tort of deceit will be established where a plaintiff can show five elements: first, that the defendant made a false representation^[100]; secondly, that the defendant made the representation with the knowledge that it was false, or that the defendant was reckless or careless as to whether the representation was false or not^[101]; thirdly, that the defendant made the representation with the intention that it be relied upon by the plaintiff^[102]; fourthly, that the plaintiff acted in reliance on the false representation^[103]; and fifthly, that the plaintiff suffered damage which was caused by reliance on the false representation^[104]. Generally, the elements of the tort have been found to exist in cases which concern pecuniary loss flowing from a false inducement and the need to satisfy each element has always been strictly enforced, because fraud is such a serious allegation.
115 Not only do the cases themselves show that an action for deceit has historically been associated with commercial and economic matters, and particularly with inducing contractual relations, but the method by which damages in deceit may be assessed also reflects this link^[105]. Where a person makes a fraudulent representation to a purchaser about the value or nature of a product or property, which representation induces the purchaser to buy the product or property, damages can be quantified by reference to the difference between the price paid, and the actual value of the product or property^[106]. In Gould v Vaggelas^[107], this Court quantified damages in deceit as those representing the loss suffered by the purchaser as a consequence of reliance on the fraudulent representation.

116 In 1974, the common law action in tort for deceit in Australia was eclipsed in part by Pt 5 of the Trade Practices Act 1974 (Cth) ("the Trade Practices Act") and cognate provisions under State legislation^[108]. The consumer protection regime embodied in that legislation prohibits both conduct that is misleading or deceptive, or likely to mislead or deceive^[109], and the making of false or misleading representations^[110].

117 The current position is that whilst the tort of deceit involves a "perfectly general principle"^[111], as contended by the husband, applications outside a commercial or economic setting are rare and the action is mainly associated with pecuniary loss. However, two older cases in which damages for personal injury arose out of a claim of deceit deserve mention. Wilkinson v Downton^[112] concerned a claim for damages in respect of nervous shock resulting from a false representation intended as a practical joke. While it was argued that the claim was one of fraud, falling within principles established in Pasley v Freeman^[113], Wright J doubted that the conduct complained of did fall within that authority and preferred to recognise the cause of action as arising from an imputed intention to cause another physical harm^[114]. Likewise false words and threats uttered with a similar imputed intention to cause physical harm, including nervous shock, were held actionable in Janvier v Sweeney^[115]. Subsequent developments in Anglo-Australian law recognise these cases as early examples of recovery for nervous shock, by reference to an imputed intention to cause physical harm, a cause of action later subsumed under the unintentional tort of negligence^[116].

118 In Smythe v Reardon^[117], Stanley J held that the false statement by the defendant that he was a bachelor and free to marry the plaintiff was not calculated to cause the degree of illness required by Wilkinson v Downton^[118]. However, his Honour did allow recovery in deceit for moneys provided by the plaintiff during their cohabitation to assist the defendant in his business as a baker^[119].

119 The question of whether an action for deceit should run in circumstances such as those of the present case has been considered elsewhere.

Decisions in other jurisdictions

120 The English case P v B (Paternity: Damages for Deceit)^[120] concerned a man's claim that he had been fraudulently deceived by a woman, with whom he had lived for many years, into believing he was the father of her child. In deciding a preliminary question of whether the tort of deceit applied in the context of domestic relations, in a brief judgment, Stanley Burnton J determined that it could be maintained as between a cohabiting couple chiefly because torts of negligence and trespass to the person applied in a domestic context and he considered it would be anomalous to except deceit^[121]. He recognised that it would not be appropriate to award damages for the tort if to do so conflicted with orders made in the Family Division of the High Court of Justice^[122].

121 From about 1930^[123], a number of jurisdictions in the United States of America have come to recognise actions in tort for the intentional infliction of emotional distress^[124], as a further development of the approach in Wilkinson v Downton^[125] and Janvier v Sweeney^[126]. As the tort has not been recognised in Australia^[127], and as differing decisions have been arrived at in different American States in respect of the availability of the tort in respect of circumstances such as here, depending often on the terms of differing State legislation^[128], the decisions are of limited assistance in determining the content of the Australian common law in question here. However, two matters are worth noting. The lack of consensus about the availability of the tort in respect of false representations concerning an extra-marital sexual relationship and paternity during marriage stems, at least in part, from the adjectival definition of the tort^[129]. Secondly, a cautious approach has been taken by a number of American courts when dealing with tortious actions for deceit in a family context, particularly where public policy considerations come into play^[130]. In 1980 in Stephen K v Roni L^[131] (a case concerning deceit in respect of contraception) it was stated:
 

"Broadly speaking, the word 'tort,' means a civil wrong ... for which the law will provide a remedy in the form of an action for damages ... [but it] does not lie within the power of any judicial system, however, to remedy all human wrongs. There are many wrongs which in themselves are flagrant. For instance, such wrongs as betrayal, brutal words, and heartless disregard of the feelings of others are beyond any effective legal remedy and any practical administration of law."

122 It was also acknowledged that it was not the business of the court to "supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct"^[132]. In a more recent case also involving an action for deceit in respect of misrepresentations concerning contraception, one member of the Court of Appeals of New Mexico stated^[133]:
 

"If we recognize a claim based on intentional misrepresentation, we have started down the road towards establishing standards of conduct in reproductive relationships — one of the most important and private forms of interpersonal relations. In the absence of a clear balance favoring the imposition of legal duties of disclosure in reproductive relations between competent adult sex partners, candour in reproductive matters should be left to the ethics of the participants."

Similar reservations have been expressed in Canada^[134], regarding the "undesirability of provoking suits within the family circle"^[135].

123 By way of contrast, the husband relied on two United States authorities in which appeal courts permitted claims for deceit, similar to the husband's, to be maintained on the grounds that public policy considerations, premised on the "best interests of the child", do not constitute a bar to such actions being brought^[136].

124 The division of opinion in other jurisdictions, including differences on public policy issues demonstrates the need to consider the elements of the tort of deceit with an eye to testing its application to a false representation of paternity made during a continuing marital relationship. In principle, the same need for close scrutiny would appear to arise in respect of any attempt to invoke the tort of deceit in other intimate person relationships, especially instances of "reproductive relations between competent adult sex partners"^[137].

Application of deceit to the facts

125 That the representations made in connection with the birth notification forms were false was not in contest at the trial. However, the wife submitted in this Court that the most she knew at the time of the completion of the birth notification forms was that there was an inevitable doubt in her mind about the truth of the representations because of her extra-marital sexual relationship. As already noted, the representations were not inconsistent with the long-standing presumption of legitimacy or the statutory presumption of parentage in the Family Law Act, nevertheless they were capable of being demonstrated to be false by DNA testing.

126 There was no evidence before this Court of whether the wife could have undergone DNA testing during pregnancy without risk to herself or her children so as to establish the truth and in any event the trial judge recognised the difficulty for the wife in trying to investigate her position, while simultaneously trying to maintain her marriage and her family.

127 All judges in the Court of Appeal found that the evidence of the wife's intention in respect of the birth notification forms was of an intention to register the two children under her married name. They also found that the husband was not induced by the birth notification forms to support the children financially and emotionally, essentially because his wife's continuing silence about her extra-marital sexual relationship is what actually led him to assume such obligations^[138].

128 This reasoning highlights the most problematic distinction between this case and orthodox claims of deceit. Marriage is a relationship of trust and confidence. Representations made within such a relationship would have to be assessed with that reality in mind.

129 In general terms, silence will only constitute a misrepresentation if there is a legal or equitable duty to disclose something