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Woman failed to tell man he was not father
By Roy Gibson
West Australian News - 21st December 2005
A pregnant woman has a duty of care not to tell a sexual partner he is the father of her unborn child if it is possible another man is the real father a District Court judge has ruled.
And mother-of-three, Kellie Gray, of Pinjarra, was negligent in not having a paternity test done as soon as her son was born, Judge John Wisbey said in his judgement in a damages action by a father who turned out not to be the father.
Rodney Macdonald, of Kewdale, claimed damages of about $70,000AUD from Ms Gray on the grounds that he was tricked into believing he was the father of her son. He gave up a well paid mining job to move to Perth to be nearer the child.
But, a court ordered paternity test proved that Mr. Macdonald was not the boy's father and he stepped out of the child's life.
However, Judge Wisbey ruled that Mr. Macdonald had failed to prove Ms Gray's behaviour was fraudulent as her belief that he was the father of her child was honestly held- but wrong.
The Judge said: "Because of the special relationshop that existed between the parties as sexual partners, there was a duty of care on Ms Gray not to advise Mr Macdonald that he was responsible for her pregnancy if the postion could be otherwise."
Describing Ms Gray as, "Naive, guileless and gullible", Judge Wisbey said she genuinely believed that Mr. Macdonald was responsible for her pregnancy
Ms Gray, who repayed the child support payments made by Mr Macdonald before the court case, was ordered to pay $8498.00AUD damages.
This covered Mr Macdonald's travel and accommodation expenses to visit the newborn baby in hospital in August of 2001 and the legal costs associated with getting an order from the Family Court for a paternity test.
Mr Macdonald lost his claim for loss of earnings.
Evidence was given that Mr Macdonald and Ms Gray met in Northam in 2000 and, over the next few months they had sex several times.
To Mr Macdonald, it was just a casual relationship but Ms Gray thought they had a future together.
Ms Gray became pregnant in December 2000- a month in which she had had sex with Mr Macdonald and another man.
Judge Wisbey ruled that Ms Gray had a duty to tell Mr Macdonald of the other sexual encounter and the possibilty that Mr Macdonald may not be the father on the unborn child.
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