The Potential Remuneration for Emotional Distress - Essay Example

Research Plan and Legal Memorandum RESEARCH PLAN There are a variety of sources on the Internet that were used in facilitatingthis study. First, the search phrase "Family Law Act 1975 (Cth)" was typed into Google.Com's web site. The following is a reference that is a result from that search. REFERENCES Anon, 2008. Commonwealth consolidated acts: family law act 1975, sect 93. [Online] Available at: http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s93.html [Accessed 24 Oct 2009]. In an entirely different search on Google, the phrase "Australian case law child support paternity test negative" was entered and the following reference was garnered from it. REFERENCES Cannold, L., 2008. Who's the father rethinking the moral 'crime' of 'paternity fraud.' [Online] Available at: http://www.sciencedirect.com/science_ob=ArticleURL&_udi=B6VBD-4T41PKK- 1&_user=10&_rdoc=1&_fmt=&_orig=search&_sort=d&_docanchor=&view=c&_searchStrId=1062516077&_rerunOrigin=google&_acct=C000050221&_version=1&_urlVersion=0&_userid=10&md5=cbb2f09267ed4c32601c6d49601af5eb [Accessed 24 Oct 2009]. In a third search on Google, the search phrase "paternity and cuckolding in Australian law" was typed in, and the following reference came from the result of that search. REFERENCES Anon, 2008. Paternity. [Online] Available at: http://www.csa.gov.au/media/paternity.aspx [Accessed 24 Oct 2009]. Another Google search was made for "Tort of Deceit paternity fraud Australia," with the following result. REFERENCES Anon, 2006. Liam Neil Magill v Meredith Jane Magill. [Online] Available at: http://www.australianpaternityfraud.org/Australia_High_Court_Judgment_Magill_v_Magill_09NOV06.htm [Accessed 24 Oct 2009]. Another Google search was done to find the following reference with the search phrase "Australian case briefs in paternity fraud." REFERENCES Dick, T., 2006. Husband loses 'duped' child support claim. The Sydney Morning Herald, Australia. [Online] Available at: http://www.canadiancrc.com/Newspaper_Articles/Sydney_Morning_Herald_Husband_loses_duped_child_support_claim_09NOV06.aspx [Accessed 24 Oct 2009]. These references were used to facilitate the research process. Relevant case law was found and applied to the case study. First an executive summary of the case was the introduction, followed by facts, issues, conclusion, analysis, and another conclusion. Legal Research and Writing Legal Memorandum Fall, 2009 Memorandum [Word Count: 1530] To: Partner From: Lawyer Date: October 24, 2009 RE: Potential Remuneration for Emotional Distress and Child Support Introduction You have asked me to prepare a memorandum analyzing the circumstances regarding the potential remuneration for emotional distress and child support paid under the guise of paternity fraud. The primary parties involved are Brad and Tanya Simpson. The main issues of this legal analysis are: 1) if emotional distress was caused to Brad, does he have any recourse to sue for damages; and 2) if, through Tort of Deceit, Brad has any recourse to incur financial gain from having paid child support in a case of what can only be described as paternity fraud. The main area of law is torts. For the purposes of this memorandum, the research methodology was limited to an analysis of the authorities you provided in conjunction with your initial request. Facts The client is Brad Simpson. He and Tanya Rogers were married in June of 1996, on Fraser Island, in Queensland. In July of 1997, Tanya gave birth to their first child, a boy named David. In November of 1998, Tanya gave birth to a second child, a daughter named Lisa. A third child, a boy named Rod, was born in February 2000. Brad was named as the father on the birth notification forms for all three children and had signed off as such when Tanya presented him with the forms. Brad and Tanya always had a tumultuous relationship. They regularly had massive fights and Brad would end up spending many nights sleeping on the couch. Tanya was often distant and both seemed to struggle with raising three small children. The couple decided to separate in January 2001. The marriage was dissolved in 2008. After the separation, Tanya applied for child support payments. Brad began making these payments in respect of all three children. These payments continued for the next seven years, until 2008. In 2006, Tanya had informed Brad that she had an extra-marital affair around the time she became pregnant with the second child. She was unsure whether Brad was the biological father of the second child. In 2008, Brad and Tanya agreed to have their second and third child DNA tested to determine the paternity. The DNA tests concluded that Brad was, in fact, not the biological father of the second and third child. Child support payments were altered to reflect this new reality. Despite the change in child support payments, Brad was clearly upset by the situation. He raised the children as his own for the past ten years and everyone would agree that he was a very doting father. The situation caused him considerable stress and he has been depressed by the result. In addition, he has also suffered significant financial loss as a result of Tanya's deception. Brad came to our law firm to see if there is anything he can do to make Tanya pay for these losses. Issue(s) The issues at hand are: 1) whether Brad has recourse to sue for emotional distress; 2) and whether Brad has recourse with regard to financial remuneration for all the child support payments made under the impression that he was the father of Tanya's second and third child. Short Conclusion The prevailing case law discussed below assumes that Brad does indeed have a case for suing for emotional distress as well as remuneration for child support payments made under the auspices of fraudulent paternity claims made by Tanya. Discussion/Analysis 1. Emotional distress caused to the father, Brad, could have financial consequences for the mother, Tanya. Herein are contained, according to Cannold (2008), "the empirical and normative assertions contained in what Father's Rights discourse calls 'paternity fraud.' Fathers' rights discourse asserts that paternity fraud is rampant and harms men by denying them the biological experience of fatherhood and a chance to partner with a faithful wife who will bear their biological children." Obviously, what Brad suffered was a case of paternity fraud. Basically, Tanya may have known that Brad was not the father. The fact that she was deceptive about this fact when she asked him to sign the birth certificates for all three children is significant because this may have jeopardized Brad to collect remuneration for having paid child support for years without knowing that he was not the father of two of his children. Further, Cannold (2008) says that in Fathers' Rights discourse that "[it is] claim[ed] biological fathers are harmed by the denial of knowledge of their biological children, while children are harmed by the absence of their biological father and by a lack of knowledge of paternal genetics critical to their health. It must be proven beyond a reasonable doubt, therefore, that Brad was harmed by not knowing that he was the father of the two last children Tanya had. According to Anon (2009), "If a court has made a declaration that a child support application should not have been accepted as the person applied against is not a parent, the receiving parent can then apply for child support against the actual parent of the child if their parentage can be established." In addition, according to Anon (2009), "This assessment will only apply from the date the application for assessment is lodged-it cannot be made retrospective." According to Anon (2006), a one such "Mr Magill commenced proceedings against his ex-wife in the Victorian County Court for deceit. He claimed damages for personal injury in the form of anxiety and depression resulting from Ms Magill's fraudulent misrepresentations. He also claimed financial loss, including loss of earning capacity by reason of his psychiatric problems and expenditure on the children under the mistaken belief he was their father, and exemplary damages." This case seems to be very similar to Brad and Tanya's case. In the amount of rewards, "Mr Magill did not claim in respect of the child support payments. He was awarded $70,000: $30,000 for general pain and suffering, $35,000 for past economic loss and $5,000 for future economic loss[a ruling that was eventually reversed by the Court of Appeal and whose appeal was rejected by the High Court]" (Anon, 2006, pgh. 2). The "decision was overturned, with the Court of Appeal finding he had not relied on the birth forms to do anything except give the children his surname."1 Potentially, since Brad only relied on the forms to give the two children his surname, he may have given up his right to sue. In the case of Liam McGill v. Meredith McGill, obvious Mr Magill made a mistake by doing nothing except giving his children his surname. Since Brad did a similar thing, it is most likely that his case would get thrown out of court. 2. Whether or not the divorce was finalized before or after child support was paid is significant. The Family Law Act (Anon, 2008, pgh. 1) clearly states that there is "[n]o appeal after divorce order takes effect," and that simply, "[a]n appeal does not lie from a divorce order after the order has taken effect. If Brad and Tanya had the paternity test after divorce occurred, it is very possible that Brad will not receive any remuneration for child support he paid in the past. In this case, Brad would neither receive any kind of recompense for emotional damages, since this would be after the fact of the divorce having occurred. Conclusion Unfortunately, it is the case that Brad most likely gave up his right to sue, as the Tort of Deceit would not have been a valid argument in order to receive recompense for emotional trauma/distress based on the fact that he was a very doting father for years until having found out that his two youngest children were indeed not his. In addition, Brad would not be able to receive remuneration from all of the years he paid child support, having thought that he was the father of all of his children. If Brad had not simply attested to the paternity by signing the childrens' birth certificates as the father, this could have changed the outcome of the case. This is mainly Brad Simpson's fault. If he was having a tumultuous relationship, he should've made sure to have a paternity test given to all of the children in order to ensure that all the children were his. Regrettably, he did not do so and instead simply signed the birth certificates of all the children with blind faith. Unfortunately, this has led to the fact that is inevitable: Brad cannot receive remuneration for having paid child support all those years to children he thought were his because of having signed their birth certificates. As an addendum, Brad is also not able to receive remuneration or recompense for his emotional distress, also because of basically having signed the childrens' birth certificates. It is rather obvious that Brad and Tanya Simpson's case most likely would have turned out exactly like Liam McGill v. Meredith McGill. Unfortunately, what one has here is not a Tort of Deceit as based on the case law appertaining to this case of Mr. and Mrs. Simpson. TABLE OF AUTHORITIES Anon, 2006. Liam Neil Magill v Meredith Jane Magill. [Online] Available at: http://www.australianpaternityfraud.org/Australia_High_Court_Judgment_Magill_v_Magill_09NOV06.htm [Accessed 24 Oct 2009]. Anon, 2008. Commonwealth consolidated acts: family law act 1975, sect 93. [Online] Available at: http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s93.html [Accessed 24 Oct 2009]. Anon, 2008. Paternity. [Online] Available at: http://www.csa.gov.au/media/paternity.aspx [Accessed 24 Oct 2009]. Cannold, L., 2008. Who's the father rethinking the moral 'crime' of 'paternity fraud.' [Online] Available at: http://www.sciencedirect.com/science_ob=ArticleURL&_udi=B6VBD-4T41PKK- 1&_user=10&_rdoc=1&_fmt=&_orig=search&_sort=d&_docanchor=&view=c&_searchStrId=1062516077&_rerunOrigin=google&_acct=C000050221&_version=1&_urlVersion=0&_userid=10&md5=cbb2f09267ed4c32601c6d49601af5eb [Accessed 24 Oct 2009]. Read More