The judgement is Lilley & Logan [2009] FMCAfam 868.
Complainant 'Mr Lilley' has apparently told Federal Magistrate Grant Riethmuller that he shouldn't have to pay for inadvertent offspring given the circumstances of conception. He claims that there was "a consumer transaction" with sex worker 'Ms Logan', who potentially breached the Trade Practices Act 1974 (Cth) [here] on the basis of an implied term of contract between clients and sex workers that women would take measures to avoid pregnancy. His affidavit indicates that 'Ms Logan's' basis for seeking financial support is "fundamentally flawed", given her job. One might indeed assume that coitus with a female sex worker would not deliberately result in offspring.
The legal action challenges whether the sex worker and the national Child Support Agency (CSA) have a right to seek money for child support. It follows suspension of initial payments, under an informal agreement between Lilley and Logan, after he lost his $140,000 pa job and fell behind in the payments.(The Court notes that he regained employment at $80,000 pa; things are perhaps not quite as dire as might be inferred from coverage in the tabloids.)
The magistrate said that the circumstances of conception made no difference to the child's entitlements under the Child Support Scheme, notably under the Child Support (Assessment) Act 1989 (Cth) [here]. That conclusion reflected the High Court's decision in Cattanach v Melchior [2003] HCA 38; (2003) 199 ALR 131 and Magill v Magill 2006] HCA 51; (2006) 231 ALR 277.
Cattanach concerned action against a doctor whose alleged negligence in failing to correctly sterilize a female patient resulted in the birth of an unwanted child, with the parents - in the end unsuccessfully - seeking maintenance payments from the practitioner. Heydon J concluded that
The various assumptions underlying the law relating to children and the duties on parents created by the law would be negated if parents could sue to recover the costs of rearing unplanned children. That possibility would tend to damage the natural love and mutual confidence which the law seeks to foster between parent and child. It would permit conduct inconsistent with a parental duty to treat the child with the utmost affection, with infinite tenderness, and with unstinting forgiveness in all circumstances, because these goals are contradicted by legal proceedings based on the premise that the child's birth was a painful and highly inconvenient mistake. It would permit conduct inconsistent with the duty to nurture children.Magill eventuated after DNA testing following collapse of the marriage between Mr and Ms Magill indicated that two children of the marriage were not the biological offspring of the husband, who consequently claimed damages in deceit for loss of earnings, loss of use of moneys, personal injury and pain and suffering. The High Court in its judgement noted the relevance of the statutory regime intended to minimise the role of fault in determining legal rights and liabilities following marriage breakdown of marriages and arrangements under Family Law Act 1975 (Cth) for repayment of moneys wrongly paid for child support.
In the current case Lilley was ordered to keep paying $100 per week, pending a foreshadowed appeal to the Social Security Appeal Tribunal.
Riethmuller noted that Lilley might potentially initiate action for damages against the owners of the brothel/escort service or against Ms Logan as an individual.
Observers have unhelpfully commented that "sex without a condom is illegal" in licensed Victorian brothels and escort services ... ss 158-160 of the Public Health & Wellbeing Act 2008 (Vic) appear to be somewhat less restrictive. The Lilley judgement does not make clear whether there was any failure of prophylaxis, a deceptive/mistaken claim by the sex worker that she could not bear children, a decision on the part of the mother not to terminate an unintended pregnancy, or simply no attempt at contraception - consistent with the values highlighted in works such as Tim Dean's Unlimited Intimacy (University of Chicago Press, 2009).
Questions about a tort of 'wrongful birth' or 'wrongful conception' continue to be contentious, with disagreements about instances where negligence or bad luck resulted in the birth of a healthy child and those where a child was born with disabilities (the latter inspiring efforts to sue medical practitioners or even parents). They are illustrated in works such as 'Conceptualising Harm in the Case of the 'Unwanted' Child' by Nicolette Priaulx in (2002) 9(4) European Journal of Health Law 337-359, 'Damages for 'Wrongful Birth': Where to After Cattanach?' (University of Melbourne Legal Studies Research Paper No. 89 2004) by Martin Vranken [here], 'Of Wrongful Birth, Wrongful Life, Comparative Law and the Politics of Tort Law Systems' by Ivo Giesen in (2009) 72 Tydskrif vir Heedendaagse Romeins-Hollandse Reg 257-273 [here], 'Abandoning the Common Law; Medical Negligence, Genetic Tests and Wrongful Life in the Australian High Court' by Tom Faunce in (2007) 14(4) Journal of Law and Medicine 469-477 [here], 'Wrongful birth, wrongful conception, and the Irish Constitution' by Brenda Daly in (2005) 12(1) European Journal of Health Law 57-76 and Etienne de Villiers Hugo's 1999 D Legum dissertation 'The actions for Wrongful Life, Wrongful Birth and Wrongful Conception - A Comparative Study from a South African Perspective' [here].
