Can you claim “deceit & misrepresentation” for paternity fraud?

What is “paternity fraud”?

Paternity fraud refers to when a mother misidentifies a man as the biological father of her child. The mother may know the man is not the father of her child, or she may simply suspect he may not be the father of her child. The man is generally listed on the birth certificate form as the father and the fraud often goes undetected for years. If the couple separates, the man may end up paying child support payments for the child for years.

Paternity fraud has devastating consequences on a family, a relationship built on trust. The case below demonstrates the High Court’s view on paternity fraud in a civil suit.

Case overview: Magill v Magill [2006] HCA 51


The appellant (“husband”) and respondent (“wife”) married and separated by November 1992. The wife gave birth to three children during their marriage, including two sons and one daughter. After their separation, the husband provided child support payments to the wife in respect of all three children. The payments continued until April 2000 where DNA testing revealed that the husband was not the father of the second or third child.

The husband claimed an adjustment of child support payments to allow for past over-payments under the Child Support (Assessment) Act. He also commenced legal proceedings against the wife in the County Court of Victoria and sued upon the tort of deceit, a cause of action which is usually used in commercial matters. The husband sued for personal psychiatric injuries resulting from the misrepresentation/deceit. He claimed he not only suffered financial loss, but also personal injury in the form of depression and anxiety. The husband succeeded at trial and was awarded $70,000 in damages.

However, the decision was reversed by the Court of Appeal of the Supreme Court of Victoria on the basis that the husband failed to establish the elements of the tort of deceit. The husband appealed to the High Court of Australia, seeking restoration of the original award of damages.

The High Court Judgment

The High Court dismissed the husband’s appeal, agreeing with the Court of Appeal’s finding that the husband failed to establish the necessary elements of the tort. Also, the Court agreed that while the application of the tort of deceit is not impossible, any attempts to construct legal rights and obligations in an “unsuitable environment” is likely to fail.

As a result, the wife continued to receive child support payments from the husband for all three of her children.

Personal context vs. Commercial context

There is no doubt that the husband was “deceived” (in layman’s terms) by his wife in this case – the wife had an affair and the court found she was, at the very least reckless, in regard to the paternity of the two younger children. She also allowed the husband to believe he was the father of their children by keeping silent about her extra-marital affair. However, “deceit” in this case refers to the tort of deceit, a cause of action which outlines specific elements that needs to be proved. In essence, the husband was appealing to the High Court to extend the application of the tort of deceit from commercial contexts to a private, family context.

The Court distinguished the relationship of a marriage from commercial context on the basis that:

  • The nature of the relationship between a husband and wife is based on complex and subtle considerations of human relationships, compared to commercial professional transactions
  • The relationship between a husband and wife is built from trust and confidence
  • The conduct (including words, actions and silence) in a marriage/relationship is not held to a legal standard. This means there is no legal duty for a married person to disclose extra-marital affairs or doubts about the paternity of their child.

However, it is interesting to note that Chief Justice Gleeson and Justice Hayne implied that there is a possibility of the tort applying in this context in exceptionally rare cases. Justice Heydon commented “precise pleading and strict proof” would also be needed.

In conclusion, the Court demonstrated a strict view on the application of the tort of deceit in a family setting, mainly due to the social policy implications it would have on the everyday lives of families. For example, many questions would arise if the Court had allowed the husband’s appeal – how would the matters that affect the degree of trust and confidence in a relationship be identified? Would this be an objective or subjective criterion?

Implications for future paternity fraud claims

The High Court’s decision about the applicability of the tort of misrepresentation makes it highly unlikely that more paternal fraud claims will appear before the courts. The Court points out that the law cannot satisfactorily prescribe how a relationship is to be maintained due to the private and personal matters between a couple.

Overall, it is highly unlikely a person attempting to claim damages under the tort of deceit and misrepresentation for paternity fraud will succeed in court.

How can you challenge paternity in relation to child support payments?

If an assessment and order for child support (under s106A of the Child Support (Assessment) Act 1989) has already been made by the Department of Human Services and a person wishes to dispute this because they are not the biological father of a child, an application can be made to the Federal Circuit Court (subject to eligibility and relevant time limits).

The application can made pursuant to s107 of the Child Support (Assessment) Act 1989, declaring that the applicant should not be assessed in respect of the costs of the child. If the application is successful, the applicant will generally be refunded the child support payments from the start date of the assessment. However, it is important to consult with an experienced family lawyer who can assist you in navigating this complex issue of law.


If you have a family law matter, contact one of our experienced family law solicitors on (02) 9920 1787 to discuss how we may assist you to achieve a favourable outcome. Pannu Lawyers extensively practice in Family Law and regularly appear at Courts throughout New South Wales such as Federal Circuit Court Parramatta, Family Court of Australia Parramatta, Federal Circuit Court Sydney, and Family Court of Australia Sydney.

The above information is intended as general information and is not to be relied on as legal advice.

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