Allan v Perpetual Trust Ltd
[2012] NZHC 80
•16 February 2012
NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS
11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CIV2011-412-000724 [2012] NZHC 80
UNDER The Status of Children Act 1969
IN THE MATTER OF an appeal pursuant to s 174 Family
Proceedings Act 1980
BETWEEN ALLAN Appellant
ANDPERPETUAL TRUST LTD First Respondent
ANDMARGARET Second Respondent
Hearing: 14 December 2011
Appearances: L A Andersen for Appellant
No appearance for First Respondent
M J Wallace for Second Respondent
Judgment: 16 February 2012
JUDGMENT OF WHATA J
Solicitors:
Alistair D Paterson, PO Box 5330, Moray Place, Dunedin
Walker MacGeorge & Co, Duncan Walker, 68 Queen Street, Waimate
Copy to:
L A Andersen, PO Box 5117, Dunedin
M J Wallace, PO Box 13254, Armagh, Christchurch 8141
ALLAN V PERPETUAL TRUST LTD HC DUN CIV 2011-412-000724 [16 February 2012]
Introduction
[1] Allan believes that Harry[1] is his father. Harry is not however recorded as Allan’s father on Allan’s birth certificate and Harry does not recognise Allan in his will. Allan’s sister, Margaret, is recognised by Harry as his daughter, even though her birth certificate records Jack as her father. She is recognised in Harry’s will. Margaret opposes a declaration sought by Allan that Harry is his father.[2]
[1] The applicant has sought suppression which I have granted. The parties’ real names have been
substituted to maintain anonymity.
[2] For clarity all parties will be referred to by first names.
Facts
[2] Allan’s mother, Diane, had seven children who included Allan and Margaret and a baby (who did not live beyond birth). Diane’s first child was Mary, born in
1932. In about 1934 Diane married Jack Jones. The remaining children were born during her marriage to Jack and Jack is recorded as the father of them on their birth certificates.
[3] In September 1959 Jack and Diane separated. She married Harry in
December 1960. Harry had been a close family friend from the early 1930s.
The evidence
[4] The primary source of the evidence in support of the declaration came from Allan and his wife, Susan. Allan refers to family history. He recounts how his older sister Mary was placed into the care of Jack’s family. He describes how the marriage between Jack and Diane was contrived to avoid Jack having to go to war. He then details the relationship between Diane and Harry, noting that not long after the marriage, Harry would regularly visit the family home. He includes photographs of Harry and Diane within his affidavit. He says that they show the closeness of their relationship. He notes that Harry would visit his mother most days while Jack was
working. He recalls on one occasion when Granddad walked from his home to visit
Diane and the children and, as he was passing the kitchen window, saw Harry and Diane lying on the sofa together. He notes that he and Margaret were conceived during the war when Jack was away from home for varying lengths of time and he records as notable that the first person to enter the maternity home after he was born was Harry. All of this is referred to as the “family secret”.
[5] Allan also narrates his relationship with Harry. He speaks of how he became gradually aware that Harry was his father. He then includes photographs of his twenty-first birthday and his first wedding, which he says show a degree of satisfaction and pride on the part of Harry usually reserved to a father. He speaks of how over a number of years he and his wife celebrated Christmas with Harry and took him on holiday. He recalls how, in late 2002, Harry gave a brooch to Susan which was a family heirloom. Allan also includes a range of photographs that he says demonstrate the family resemblance between him and Harry and between his older brother and Jack.
[6] Under cross-examination, Allan identified that the source of his family history came from his older sister, Margaret, who in turn had been told about this history by Auntie M.
[7] Susan also provides evidence that Harry told her on a number of occasions that he was Allan’s father, that he had faith in Allan and how pleased he was to have Allan as his son. She specifically recalls three occasions, namely when she was cooking dinner at his house, at New Year when they were sitting together under a tree, and at his home when they were together in the dining room. Allan also recalls overhearing one of these conversations.
[8] Finally, there is expert evidence on DNA testing from Dr Arie Geursen. He observes that the DNA material shows that Allan and his older brother Bob do not have the same father.
[9] Margaret provides evidence in response to the application for a declaration. She says the marriage between Diane and Jack broke down because of Jack’s violence towards the children and Diane. She also says that she was never aware
that Harry was her father until he told her at Diane’s funeral. To her knowledge, he
never acknowledged Allan as his son.
[10] Margaret’s husband also gives evidence. He says that in his presence Allan told a number of people at the funeral that he was Harry’s stepson. Allan denies telling anyone at the funeral that he was Harry’s stepson.
Family Court decision
[11] The Family Court describes how Allan’s case is based on four assertions:
(a) It was a well-known “family secret” that Harry was in fact his father.
(b)There is a physical similarity between himself and Harry as evidenced by various photographs produced in evidence.
(c) Harry made admissions to his (Allan’s) wife, both direct and indirect, that he was Allan’s father.
(d)Finally, on the basis of DNA tests between Allan and Bob which shows that they have a different putative father, Harry is Allan’s father.
[12] Following a careful review of the evidence, the Family Court made the following key findings:
(a) Little weight was placed upon the photographs provided. The Judge found that there were no overt distinguishing features, which, when looking at the photographs, led him to conclude that it was more likely than not that Harry was the father of Allan.
(b)The DNA evidence was simply probative of the fact that Allan and his brother Bob do not share the same putative father. There was no DNA evidence, however, that conclusively pointed to Jack not being Allan’s father or which pointed to Harry being Allan’s father.
[13] In the Judge’s view the totality of the evidence was insufficient to enable him to conclude that it was more likely than not that Allan was Harry’s biological son. He said:
31.... The evidence of the family history is too unreliable to enable me to accord it any weight. The assumptions I am being asked to make in relation to the photographic evidence is similarly too unreliable for the reasons I have set out above. All that the DNA results indicate is that [Allan] and [Bob] have different fathers.
[14] In the Judge’s view the only concrete evidence was the alleged admissions to Susan. He said that they were not however sufficiently robust or detailed enough for him to place any weight upon them.
[15] He concluded by observing:
33.It is significant in my view that despite [Allan’s] assertions that it was well known within the wider family that [Harry] was his biological father, that knowledge was not held by [Margaret], nor is there any evidence that it was held by any other of the siblings. It is significant in my view that there were no actual discussions between [Allan] and [Harry], and further significant in my view that in his instructions to Perpetual Trust Ltd [Harry] recorded [Margaret] as his child.
Grounds for Appeal
[16] Mr Andersen contends that the Family Court Judge erroneously did not give any or proper consideration to the evidence of the family dynamics, the sexual relationship prior to Allan’s birth and the knowledge of this within the family. He contends further that the learned Judge incorrectly placed no significance on the DNA evidence and was unduly critical of the photographic evidence showing a strong family resemblance.
[17] Finally, he says that the conclusions about Susan’s evidence do not do justice to it, particularly as there was no challenge to the veracity of her evidence or the fact that Allan overheard one of the conversations.
[18] Overall, it might be said that Allan complains that the Family Court improperly disregarded probative evidence and thereby failed to have regard to relevant information which in turn led the Family Court into substantive error.
[19] Mr Wallace responds by emphasising:
(a) Allan must displace the statutory presumption as to parenthood (namely the parent on the birth certificate is presumptively the biological parent).
(b)Allan must prove that Jack is not his father and that Harry is his father, and establish that the decision of the Family Court Judge is wrong.
[20] Mr Wallace adopts the Family Court reasoning noting that Allan has attempted to elevate old unverified family gossip to the heights of proven facts. The family resemblances in the family photographs create as much uncertainty as they do certainty. The only evidence that could be said to be directly from Harry points to Allan not being his son (referring to the will, and the instructions to his lawyers that only Margaret was his child).
Issues
[21] Allan accepts that he has the burden of showing that: (a) The Family Court got it wrong;
(b) He is, on the balance of probabilities, the son of Harry.
[22] Mr Andersen says, however, that the two questions involve the same analytical exercise. By contrast Mr Wallace says that I must first be satisfied that the Family Court got something wrong, before addressing the full merits.
[23] Given the manner in which the argument was presented to me, I will proceed on the basis that I must first be satisfied that there was a material error in the Family
Court judgment, but that I do not need to defer to the Family Court’s findings in arriving at whether there was an error. Even if I find that there was an error, I then must still be satisfied on the balance of probabilities that Allan is Harry’s son. Ultimately the key issue remains whether the Family Court was wrong.
Error?
[24] I am respectfully unable to agree that no weight can be attached to Allan’s evidence about the family history or to Susan’s evidence about Harry’s admissions of parenthood.
[25] Dealing first with the family history. Allan’s evidence about a “family secret”
is dismissed as too unreliable to enable the Judge to accord it any weight.
[26] I agree that Allan’s evidence on the family secret is plainly double hearsay. More accurately it includes triple hearsay (grandfather to aunty, to Mary, to Allan). But in my view it cannot be disregarded altogether. First, Allan’s evidence was not challenged as inadmissible. This is not surprising given the more relaxed evidential rules that apply to Family Court proceedings. Importantly, however, there is no finding that he lacked credibility. Accordingly, his evidence should be treated as a truthful account of what he heard from his sister. I accept, however, that the weight that can be afforded to this evidence must be limited given that neither Mary nor the Auntie was available for cross-examination.
[27] The Judge also made the following comment on Susan’s evidence about
Harry’s admissions of parenthood:
32.… they are not sufficiently robust or detailed enough for me to place any weight upon them. It is unclear whether [Harry] meant that he saw [Allan] as his biological son or as his stepson, and therefore as his “son”. I accept that [Susan] has taken an inference from the context and manner in which the discussions were held, but there are equally plausible explanations for what was said and the manner in which it was said, such as an extremely close stepfather-stepson relationship.
[28] I agree with the Judge that, plausibly, Harry was simply referring to his close stepfather/stepson relationship. But I consider that Susan was best placed to
interpret the context and nuances attaching to the statements (obviously other than Harry himself). Like Allan’s evidence, the truthfulness of her account was not directly challenged and there is no adverse finding as to her credibility. That combination lends itself, in my view, to an equally plausible inference that Harry was speaking about his son in a biologically paternal sense, rather than simply as a statement of affection or closeness to Allan. There was no reason to make a fuss about Allan being his stepson.
[29] Accordingly Susan’s evidence and Allan’s family history should also have been given some weight. They were valid strands in Allan’s circumstantial case. Nevertheless I must still examine the full merits of the appellant’s position, namely whether Allan has shown, on the balance of probabilities, that he is Harry’s biological son.
Merits
[30] It needs to be remembered that:
(a) There is a statutory presumption that Jack is Allan’s father; and
(b) Allan carries the burden of demonstrating on the balance of
probabilities overall that he is Harry’s son.
[31] Mr Wallace referred me to several authorities that suggested that I must be satisfied on the balance of probabilities, having regard to the gravity of the consequences of making a finding that the statutory presumption is rebutted. Mr Andersen stressed that no greater caution is needed in this context. Put simply, he said, that in light of Z v Dental Complaints Assessment Committee,[3] there is no intermediate standard of proof between balance of probabilities and beyond reasonable doubt.
[3] Z v Dental Complaints Assessment Committee [2009] 1 NZLR 1.
[32] For my part, the statutory presumption is addressed by the need for Allan to
show on the balance of probabilities that he is Harry’s son. Plainly, if he crosses that
threshold, the presumption has been rebutted. In arriving at whether or not that standard of proof has been satisfied, I prefer “the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.[4]
In my view this accords with the majority in Z v Dental Complaints Assessment Committee.[5] But I do not necessarily agree that the issue here is as grave as Mr Wallace makes it out to be. This is not a case where the presumptive father is seeking to remove the presumption of paternity so that a child is left fatherless. One can see the need for greater caution in that context. However we are simply dealing with a claim between two siblings for a share in property handed down by a stepfather who might in fact be a biological father. I see no need for additional caution in that context.
[4] Refer Allan v M 1 FRNZ 326 at 328.
[5] Ibid, at [102] and [105].
[33] Turning then to the main grounds upon which Allan says that he is Harry’s
child, namely:
(a) The evidence of a prior sexual relationship, including the photographic evidence supporting the nature of the relationship between Harry and Diane;
(b)The DNA evidence demonstrating that Allan does not share the same biological father as his brother Bob;
(c) The oral history passed on to Allan about the “family secret”;
(d) The photographic similarities between Allan and Harry;
(e) The testimony of Susan, Allan’s wife, that she was specifically told by
Harry that Allan was his son.
[34] I can deal with the alleged photographic similarities quite simply. Allan is not an expert on photographic comparison. His opinion evidence can carry no weight. Furthermore, like the Family Court Judge, I am of the view that multiple
inferences can be drawn from the photographic evidence, both positive and adverse
to the appellant. Therefore in my view, the photographs do not add to Allan’s
position.
[35] The DNA is also equivocal in terms of direct evidence of whether Harry is the biological father of the appellant. However, given that no one disputes that Bob is Jack’s son, it might be said that Jack is not Allan’s biological father. But there must still be an element of speculation about that, because the DNA evidence does not confirm one way or other who Allan’s father might be.
[36] The oral history then suggests that there was a sexual relationship between Harry and Diane at sometime prior to Allan’s birth. Margaret also accepts that Harry is her father. Plainly that can only be possible if there was a sexual relationship. When that is coupled with the admissions by Harry to Susan, an available inference may be made that Allan was Harry’s biological son.
[37] But that is not the end of the evidence. As Mr Wallace pointed out, Harry denied in his written instructions to his solicitors that he had any children other than Margaret. That was affirmed by way of Harry’s will, as it refers only to Margaret as his child. Therefore, Harry did not, in the end, treat Allan as his biological son. Margaret also denied having any knowledge of a family secret until relatively recently, and then only in relation to her status. There are no adverse credibility findings against Margaret, and nothing in the transcript to damage her credibility, so the truthfulness of her account is not in issue.
[38] Against this backdrop, I cannot resolve with certainty why Harry ultimately eschewed fatherhood of Allan. I am unable to reasonably determine that he lied when he completed his instructions to his solicitors and then executed his will. It may be that, as Mr Andersen says, Allan fell out of favour in the last couple of years of Harry’s life. It may also be that his earlier belief that he was Allan’s father changed. All of that calls for speculation. There is also no documentary evidence that specifically states or suggests that Harry was Allan’s biological father – there are no diary notes (for example from Diane), no letters or other written sources that might provide confirmation. While the absence of evidence per se does not entitle
me to draw an adverse inference, the presence of such evidence might have assisted me to choose between contradicting information.
[39] It is trite that where the totality of the evidence reasonably points to two mutually exclusive positions, it would be inappropriate to draw a conclusion on the balance of probabilities one way or another. It is not a question of reliability. It is whether, having regard to all of the reliable evidence, I am satisfied that Harry is Allan’s father on the balance of probabilities. Having considered all of the evidence, I am unable to say to a sufficient degree of probability that Harry is Allan’s father. As the appellant carries the burden of proof, the appeal therefore must be resolved against him. Accordingly while I reach this result by a slightly different route, my conclusion is the same as the Family Court Judge.
[40] Mr Andersen did seek an opportunity to have Mary give affidavit evidence in the event I felt that evidence might be determinative. Mr Wallace complains that Mr Andersen had ample opportunity to produce affidavit evidence from Mary and did not do so. He observed that the Family Court Judge was clearly concerned about that fact. I agree with Mr Wallace that it would now be too late to go down that path. First, if Mary knew or had reason to believe that Harry was Allan’s biological father, evidence about that should have been produced at trial. Second, while I have a broad discretion on appeal, normal principles of finality ought to apply unless it would be unjust not to introduce the evidence. Given that the appellant had opportunity to produce affidavit evidence at trial, I cannot see any injustice arising by my refusal now.
[41] Third, Mr Andersen said that he did not know what the outcome of any such affidavit evidence might be. I am therefore only able to speculate on what Mary might say and I do not consider that to be a sufficient basis for directing that further evidence be lodged with all of the delay and cost attendant upon that.
[42] In summary, while I find myself unable to agree with some of the reasoning of the Family Court, I do not consider that the appellant has discharged the burden of demonstrating that Harry was his biological parent.
[43] I will say this however, the Court is bound by a statutory threshold – I must be satisfied on the balance of probabilities. That I am not so satisfied does not mean that I have found that Harry is not Allan’s biological father. Plainly there is evidence, both from the family history, but also from the admissions to Susan, that Harry was Allan’s father. As I have said, the truthfulness of that evidence has not been challenged. It would be wrong therefore to conclude that there is no such biological connection. My finding is simply this, that I am unable to determine the matter one way or another.
Suppression
[44] The appellant has sought suppression of the names of the parties and the deceased for the following reasons:
“(a) This is a private family matter and there is no public interest in the public knowing the details;
(b) It is on appeal from the Family Court and no publicity attached to the Family Court decision which is not in the public arena;
(c) It is submitted that both the appellant and respondent are
“vulnerable” people for the purposes of s 11D(i) Family Courts Act
1980 because publication of their names would make public the circumstances relating to their family history that would result in the
adverse consequence of embarrassment for them.”
[45] I am content to grant suppression for these reasons. I direct that publication be limited to an anonymised version.
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