Application by Boon

[2017] NZHC 1509

IN THE HIGH COURT OF NEW ZEALAND

WHANGAREI REGISTRY

CIV-2016-488-95

[2017] NZHC 1509

UNDER

the Status of Children Act 1969 and Declaratory Judgments Act 1908

IN THE MATTER OF

an application for a declaration of paternity

IN THE APPLICATION

of LINDA BOON in her capacity as the legal guardian of KEANU KAYNE
BOON

Applicant

Hearing:	On the papers
Counsel:	A P Holgate for Applicant
Judgment:	3 July 2017

JUDGMENT OF WHATA J

This judgment is delivered by me on 3 July 2017 at 11 am, pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registr

Counsel:            A Holgate, Barrister, Whangarei

Solicitors:           The Conveyancing Shop Lawyers Limited, Epsom, Auckland

APPLICATION BY LINDA BOON [2017] NZHC 1509 [3 July 2017]

[1]                 Ms Boon seeks a declaration that her son, Keanu Kayne Boon, was fathered by Rangi Hape Chevette Nikara. Mr Rangi Nikara passed away on 11 October 2013 without formally accepting Keanu was one of his sons, though there is affidavit evidence before me that he informally accepted that Keanu was his son.

Background

[2]                 Ms Boon had attempted to obtain orders in the Family Court, pursuant to the Status of Children Act 1969 (the SOCA), but was unable to do so because the Family Court Registry denied jurisdiction to entertain the application, I am advised by counsel, on the basis that s 49 of the Family Proceedings Act 1980 (the FPA) required an application to be made within six years of the birth of the child. To the extent necessary, Ms Boon applies to this Court, pursuant to s 10(2) of the SOCA and its inherent jurisdiction, noting also that this Court is not statutorily bound by any limitation in terms of making a declaration as to Keanu’s paternity.

[3]                 Initially I was not content to make the order as sought without further evidence as to Keanu’s whakapapa connection to Mr Nikara. I sought an affidavit from a patriarch or matriarch of the whanau before I would consider the application further. I indicated that it would be helpful if the affidavit could set out the whakapapa of the matriarch or patriarch, linking that person to the relevant tribe and tribal rohe. I also sought further submissions on jurisdiction and, in particular, to ss 54 to 59 of the FPA.

[4]                 In response to my request, an affidavit was produced by Tui Horina Nikara, the mother of Rangi Nikara. Mrs Nikara provides a whakapapa of her family, hapu and tribe and indicates that she is happy for her son, Rangi, to be on Keanu’s birth certificate as his father.

[5]Mr Holgate made submissions on behalf of the applicant:

(a)Section 10(5)(b) of the SOCA enjoins the Court to determine this matter in the same way as a declaratory judgment;

(b)The purpose of the Act was to remove the stigma that the common law imposed through antiquity (“illegitimacy”) on children of unmarried

parents and to make all children of equal status (referring to ss 2(a) and 3 of the Act).

(c)Citing international convention, every child has a right to paternity.

(d)The affidavit evidence of Ms Boon establishes that Keanu was Rangi’s son and that Mr Nikara accepted, by his conduct, that he was the father of Keanu.

(e)Keanu’s older brother, Caleb, already can lay claim to the Nikara whanau, hapu and iwi as of right and the same right should be conferred on Keanu.

(f)The Family Court Registrar’s decision was in error as the applicant at all times sought orders in terms of the SOCA which specifically excludes the operation of s 49 of the FPA.

(g)A paternity test is cost prohibitive and, in any event, finding a reliable source of DNA from the deceased is difficult and has proven to be very difficult.

[6]                 I subsequently raised with Mr Holgate my preliminary view that the SOCA is concerned with legal not biological relationships, such that the Court’s assessment for the purposes of s 10 of the SOCA is not confined to evidence of biological paternity.1 I called for further submissions on the applicable law.

[7]                 Mr Holgate eventually filed a further memorandum on 5 June 2017. These helpfully provided a comprehensive review of the authorities dealing with applications under the SOCA. He submitted, in summary form, the following:

(a)The applicable standard of proof is the balance of probabilities.

1      Hemmes v Young [2005] NZSC 47, [2006] 2 NZLR 1.

(b)The Court in determining paternity will be mindful of the fact that the decision has far reaching legal consequences, and thus will take a cautious approach.

(c)It will only be in very rare cases that it is not in the child’s best interests to know who his or her father is – on this point he emphasised that a declaration would allow Keanu to affiliate with his father’s whanau and hapu.

(d)Corroboration of evidence is not required but uncorroborated evidence will be scrutinised more closely – Mr Holgate submitted that Ms Boon’s affidavit evidence was corroborated by photos and the birthday card, and that DNA evidence should merely be seen as potential corroborating evidence.

(e)Overall, Ms Boon’s application discharged the burden of proof, having on a holistic view provided compelling evidence of paternity.

Legal frame

[8]                 Section 10(2) of the SOCA provides the jurisdiction for the High Court to make declarations as to paternity:

10       Declaration as to paternity

…

(2)A Family Court or the High Court may make a declaration of paternity (whether the alleged father or the alleged child or both of them are living or dead) if—

(a)an eligible person applies to the court for the declaration; and

(b)it is proved to the court's satisfaction that the relationship exists.

Standard of proof

[9]                 Section 10(6) provides that the relevance standard of proof is the balance of probabilities:

(6)Every question of fact that arises in applying any of subsections (2) to (4) must be decided on a balance of probabilities.

[10]              There are also a number of authorities in support of the proposition that the relevant standard of proof is the balance of probabilities.2 In Re I Gendall J observed:3

I think the matter is quite clear that any questions of fact are to be determined or decided on a balance of probabilities so that once the facts are determined an appropriate conclusion can be reached or drawn from the facts. The drawing of an inference or conclusion as to paternity can only be from established facts which are proven to be probable, and the inference to be drawn should be on the basis that it is more probable than not.

[11]He concluded:4

In the end the Court has to exercise its judgment in placing all matters of evidential value on the scales so as to come to a proper conclusion as to whether or not the essential facts and the conclusion as to paternity has been proven on the balance of probabilities. It is a serious matter because paternity is a matter of status affecting the heritage, lineage, and possible inheritance rights of the plaintiff. Substantial financial consequences may arise. It is a factor that M was not cross-examined or tested on the allegations contained in her affidavit, even though the defendant did not accept them to be necessarily true. But in my overall assessment of the evidence and viewing and weighing it with care, I am compelled to the conclusion that M's affidavit is the truth.

Guidance

[12]I also receive guidance on the following matters from case law:

(a)Corroboration of evidence is not required.5

(b)Gendall J also emphasised that the same degree of caution was required even when one parent is deceased.6

(c)It will only be in very rare cases that it is not in the child’s best interests to know who the father is.7

2      Swanwick v Peterson HC Christchurch M536/98, 29 January 1999; T v M (1984) 2 NZFLR 462 (CA).

3      Re I (1997) 15 FRNZ 525 at 533.

4      At 538.

5      At 533.

6      At 533.

7      T v S [Guardianship] [2005] NZFLR 466 (CA) at [64]. Note that this case considered the Guardianship Act 1968 and the Family Proceedings Act 1980.

Evidence relevant to assessment

[13]              In G v P, Potter J declined to grant an order, drawing an adverse inference from the fact that the plaintiff had refused to participate in DNA testing.8 But the Supreme Court in Hemmes v Young has confirmed that the SOCA is concerned with legal relationships and not biological relationships, such that while a biological relationship is good evidence justifying a declaration of legal relationship, it is not the only proof.9 It observed that one of the explicit purposes of the Act was to “remove the legal disabilities of children born out of wedlock”:10

It is in the context of legal status and removing the disabilities previously attaching to the status of illegitimacy that the reference to the relationship between every person and his mother and father must be understood.

[14]              The Supreme Court then explicitly stated that the reference in s 10 to the relationship of father and child must be to the legal relationship of father and child, rather than to a biological relationship.11

Assessment

[15]              In accordance with Hemmes v Young, the object of an enquiry under s 10(2) of the SOCA is not biological paternity, but rather a more holistic assessment of paternity. The absence of DNA evidence is therefore not fatal to the application. Moreover, while in G v P Potter J drew an adverse inference from refusal to participate in DNA testing, Mr Holgate’s submission here is that the applicant cannot afford to undertake testing, which would cost upwards of $1000. He also emphasises the lack of clothing of Mr Nikara from which DNA could be obtained. By contrast, in G v P the parents of the child were disputing paternity.

[16]              Second, there is a sizeable amount of evidence establishing that Mr Nikara accepted that he was Keanu’s father:

(a)Ms Boon’s affidavit evidence that Mr Nikara was the father;

8      G v P HC Gisborne SC1/2001, 10 December 2001, at [28].

9      Hemmes v Young, above n 1, at [16].

10 At [9].

11     At [14]-[16].

(b)Mrs Nikara’s affidavit evidence accepting Keanu;

(c)eight photos taken between 10 June 2006 and 14 September 2013 of Keanu with Mr Nikara; and

(d)a birthday card from Mr Nikara to Keanu signed “Dad”.

[17]              Finally, it is worth noting that this application is not made as a precursor to a claim over Mr Nikara’s estate. Rather, it is made in Keanu’s interests, namely his ability to affiliate with the hapu of his father, like his brother Caleb. Mr Nikara’s mother’s affidavit outlines their whakapapa. As Mr Holgate rightly submits, this is of significant value to Keanu.

[18]              Approaching the application as a whole, and conscious of the fact that a declaration is a serious matter, I consider there is sufficient evidence establishing paternity. The support of Mr Nikara’s mother, matriarch of his whānau, together with the photos and birthday card, in my view, provide strong evidence corroborating Ms Boon’s affidavit and establishing to the requisite standard that Mr Nikara is Keanu’s father.

Declaration

[19]              I make a declaration pursuant to s 10(2) of the Status of Children Act 1969 that Rangi Hape Chevette Nikara is the father of Keanu Kayne Boon.