Kirton v Herbison

[2022] NZHC 3208

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000451

[2022] NZHC 3208

IN THE MATTER OF

The Estate of Kevin Hardaker

BETWEEN

DALE SHELDON KIRTON

Applicant

AND

WILLIAM EDMOND HERBISON and GREGORY JOHN HOPKINS

Respondents

Hearing:	On the papers
Judgment:	2 December 2022

JUDGMENT OF NATION J

Introduction

[1]    Dale Kirton seeks a declaration that Kevin Hardaker was his father. Mr Hardaker died on 19 June 2021, leaving a will which did not provide for Mr Kirton. Mr Hardaker never acknowledged Mr Kirton as his son when he was alive. Mr Kirton advances this application so he can bring a claim under the Family Protection Act 1955 against the estate.

Background

[2]The affidavit evidence filed with the Court establishes what follows.

[3]    Mr Kirton was born in 1969. His mother is Kathleen Mann. Ms Mann deposed that she was in a relationship with Mr Hardaker prior to Mr Kirton being born. Ms Mann and Mr Hardaker met in 1967 when they were both working for a fur

KIRTON v HOPKINS [2022] NZHC 3208 [2 December 2022]

manufacturer in Christchurch. They became romantically involved when she was 16 years old and he was 18 or 19 years old. They had been dating for a few months when Ms Mann became pregnant. Mr Hardaker was the only potential father.

[4]    After Ms Mann became pregnant, it became clear Mr Hardaker did not want to have the child. She left him and, as a single mother, raised Mr Kirton until she married when Mr Kirton was one year old.

[5]    On several occasions, Ms Mann contacted Mr Hardaker to tell him that Mr Kirton was curious about who his father was. On those occasions, Mr Hardaker said he was not interested in meeting his son or having a relationship with him. Ms Mann told Mr Kirton when was 16 years old that Mr Hardaker was his father. Ms Mann again contacted Mr Hardaker to see if he was interested in starting a relationship with Mr Kirton. Mr Hardaker was clear that he was not interested.

[6]    When Mr Kirton was 30 years old, he decided to make contact with Mr Hardaker himself. He went to where Mr Hardaker was living and waited for him to come out of his house, so he could see if there was a physical resemblance. He did this on a few occasions, but never saw Mr Hardaker.

[7]    In 2015, Mr Kirton’s daughter, Tayla  Kirton, decided to try to start a relationship with Mr Hardaker. She looked online for more information about the Hardaker family. In 2018, she found out Mr Hardaker had another son, Roger Baillie.

[8]    In 2018, Mr Kirton contacted Mr Baillie and they started a relationship. Mr Kirton did not attempt to contact Mr Hardaker again because Mr Hardaker had made it clear he did not want a relationship with Mr Kirton.

[9]    In April 2020, Ms Kirton called Mr Hardaker and told him she was his granddaughter, which he did not deny.

[10]   Following Mr Hardaker’s death, Mr Kirton and Mr Baillie had a DNA test done to confirm they had the same father. That test showed the loci examined on their Y chromosomes was identical, indicating they have a common male ancestor.

[11]   Mr Kirton filed proceedings in this Court to obtain a declaration as to paternity on 4 October 2022. He did so after his counsel communicated with the executors of the estate, who advised him they were unable to consider his claim to part of the estate without a declaration as to paternity. The executors of the estate did not oppose this application.

Discussion

[12]   This application was made as an originating application under r 19.5 of the High Court Rules 2016.

[13]   The application was served on Mr Hardaker’s executors. By memorandum, they have indicated they do not oppose the application. Mr Hardaker’s son, Mr Baillie, has filed an affidavit supporting the application.

[14]   The Court may grant leave for a proceeding to commence through an originating application where it is in the interests of justice to do so. This proceeding is straightforward and unopposed. It is in the interests of justice to ensure a just, speedy and inexpensive determination for this proceeding. I grant leave to bring this application as an originating application and have been able to determine it on the papers.

[15]   A declaration of paternity can be made under s 10 of the Status of Children Act 1969, which provides that a person who alleges the relationship of father and child exists between themselves and another person can apply to the High Court to make a declaration of paternity whether the alleged father is living or dead. To make such a declaration, the applicant must prove to the court’s satisfaction that the relationship exists. Any question of fact is determined on the balance of probabilities.

[16]   The relationship of father and child, and any other relationship traced in any degree through that relationship, is established for the purpose of a claim under the Family Protection Act if a declaration of paternity is made under s 10.1

1      Status of Children Act 1969, s 7(1)(c).

[17]   A declaration of paternity under s 10 of the Status of Children Act declares the legal relationship of a father and child. It is not designed to declare a biological relationship or biological facts. However, the Supreme Court has held that proof of the fact of a biological relationship of father and child will in most cases justify a declaration that the legal relationship of father and child exists.2

[18]   I am satisfied, on the balance of probabilities, that there is a biological father- son relationship between Mr Hardaker and Mr Kirton. There is affidavit evidence before the court detailing the relationship between Mr Hardaker and Ms Mann and her subsequent pregnancy. There is evidence both Ms Mann and Ms Kirton spoke to Mr Hardaker about Mr Kirton being his son. While he was clear he did not want to be involved, it appears he never denied being Mr Kirton’s father. Further, there is DNA evidence that Mr Kirton shares a male ancestor with Mr Baillie, Mr Hardaker’s son. None of this evidence has been disputed.

Conclusion

[19]Leave is granted to bring the proceedings as an originating application.

[20]   I make a declaration pursuant to s 10(2) of the Status of Children Act 1969 that Kevin Hardaker was the father of Dale Sheldon Kirton.

Solicitors:

MDS Law, Christchurch
Jai Moss, Barrister, Christchurch

Hamish Evans, Barrister, Christchurch.

2      Hemmes v Young [2005] NZSC 47, [2006] 2 NZLR 1 at [14]–[16].