Appeal blow for man who paid maintenance for another's children

The Age, by Peter Gregory, Chief court reporter, March 18, 2005

Liam Magill at the County Court. Photo: Ken Irwin

A man who was awarded $70,000 damages after discovering he had been paying maintenance for another man's children was in "total disbelief" last night after his ex-wife successfully appealed against the award.

Liam Magill, 54, sued his ex-wife Meredith, 38, in the County Court after DNA tests confirmed he was not the father of two of the couple's three children.

He was awarded $70,000 for pain and suffering and economic loss, but three Appeal Court judges yesterday overturned the decision. They also awarded legal costs against Mr Magill.

Justice William Ormiston said yesterday in a published judgement that the legal battle was fought on a narrow basis and the case should not be seen as a precedent for similar proceedings.

Justices Frank Callaway and Geoffrey Eames also upheld the appeal. Justice Eames said Mr Magill was awarded damages on the basis of misrepresentations made by his wife in birth forms about the paternity of the two children.

"The evidence disclosed that the discovery of his wife's adultery and the paternity of the children were more major causes of (Mr Magill's) mental illness, rather than the (misrepresentation)," he said.

Outside the Court of Appeal, Mr Magill's solicitor, Vivien Mavropoulos, said his legal team would assess the judgement. "Liam hasn't coped very well over many, many, years, so this will be a big blow for him," she said.

Mr Magill's girlfriend, Cheryl King, said he could not believe the decision that had been handed down. "He said: 'I despair for Australian society'," Ms King said last night.

She said she and Mr Magill had sold assets to contest the appeal and were in debt, despite the establishment of a legal fighting fund.

A spokeswoman for Clayton Utz, the law firm that represented Ms Magill, said she was happy with the decision. "She and her kids just want to get on with their lives now," the spokeswoman said.

In a related announcement, Attorney-General Philip Ruddock said the Government had introduced new legislation concerning those who found they were not parents of supported children after DNA testing.

Mr Ruddock said the bill was meant to make the recovery of child maintenance payments and property transferred after court orders easier.

Liam and Meredith Magill were married in April 1988 and separated in November 1992. They had two sons, in April 1989 and July 1990, and a daughter in November 1991.

Justice Eames said Ms Magill was having unprotected sex with another man in an affair between September 1989 and early 1995. He said she claimed child support from Mr Magill, who made payments for all three children.

By 1993, Ms Magill suspected her second son might not be her husband's child. She gave evidence in the County Court that she had believed Mr Magill probably was the second son's father, and she had been sure her lover was not the father of her daughter.

But her belief about the paternity of her younger son was shaken when she saw photographs of her lover as a child and noticed a strong resemblance.

The judgement said Ms Magill told her husband of her suspicions in 1995, after suffering a nervous breakdown. Mr Magill cared for the three children when she was ill, and paid child support between 1993 and 1999, except for a 12 to 14-month period in 1996 and 1997.

Ms Magill agreed to DNA testing in 1999, and the results proved Mr Magill was not the father of the younger children. Child support payments were adjusted and arrears wiped out.

The County Court heard Mr Magill suffered a severe psychiatric condition, which included depression and a severe anxiety disorder. He had been out of work for some years and would continue to need medication, according to doctors.