Lister v Beardsley HC Hamilton M 104/94

[2001] NZHC 888

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY M 104/94

BETWEEN KYM MARIE LISTER
Applicant

AND STEPHEN BEARDSLEY
First Respondent

AND NIGEL DIXON
Second Respondent

Hearing: 20 September 2001

Counsel: K A McDonald for the Applicant

Date of Judgment: 20 September 2001

ORAL JUDGMENT OF PATERSON J

Solicitors:
Harkness Henry & Co, Private Bag 3077, Hamilton, for the Applicant

[1] Miss Lister seeks a declaration as to the paternity of her daughter, Tori Anne Dixon. She alleges that the First Respondent, Stephen Beardsley, is the father notwithstanding that her daughter’s birth certificate shows that the Second Respondent, Nigel Dixon, is the father of the child. Both Stephen and Nigel have been served with the proceedings but neither has entered an appearance and this matter has therefore proceeded by way of formal proof.

Facts

[2] Tori was born in Hamilton on 2 February 1992. As already noted, the birth certificate shows Nigel as the father.

[3] Ms Lister married Nigel on 11 April 1991. For a period of two years prior to this date she had had a sexual relationship with Stephen. This relationship resumed two months after the marriage and the applicant had become pregnant shortly thereafter. The sworn evidence of Ms Lister is that at the time of her daughter’s conception she was only involved in a sexual relationship with Stephen and Nigel.

[4] Six months after Tori’s birth Ms Lister and Nigel separated. She then resumed her relationship with Stephen and the couple lived together for approximately four and a half years, separating in February 1998. Nigel now resides in Sydney while Ms Lister resides in Western Australia.

[5] There were attempts between the three parties to resolve this matter and at one stage there was an agreement that Nigel would undergo a DNA test. The evidence suggests that the agreement was that if this disclosed he was not the father of Tori, Stephen would then sign a consent to this application.

[6] DNA testing was carried out with samples being taken from Ms Lister, Tori and Nigel. The certificate from DNA Diagnostics dated 9 November 1998 gives the analysis and concludes from the analysis “that Nigel Roy Dixon is not the biological father of Tori Dixon”. Stephen has not signed a consent as agreed. There is a suggestion that this may be because of background issues relating to child maintenance.

[7] There is also evidence of Stephen’s parents treating Tori as a grandchild but this of course is only peripheral evidence as to the main issue.

The law

[8] The application is made pursuant to s 10 of the Status of Children Act 1969.

“10. Declaration as to paternity - (1) Any person who -

(a) Being a woman, alleges that any named person is the father of her child; or

(b) Alleges that the relationship of father and child exists between himself and any other named person;

(c) Being a person having a proper interest in the result, wishes to have it determined whether the relationship of father and child exists between 2 named persons,

May apply to the High Court for a declaration of paternity, and if it is proved to the satisfaction of the Court that the relationship exists the Court may make a declaration of paternity whether or not the father or the child or both of them are living or dead.

(2) Where a declaration of paternity under subsection (1) of this section is made after the death of the father or of the child, the Court may at the same or any subsequent time make a declaration determining, for the purposes of paragraph (b) of sub section (1) of section 7 of this Act, whether any of the requirements of that paragraph have been satisfied.

(3) The provisions of the Declaratory Judgments Act 1908 shall extend and apply to every application under subsection (1) of this section.

(4) Every question of fact that arises in applying subsection (1) or subsection (2) of this section shall be decided on a balance of probabilities.”

[9] Also relevant are s 8(1) and 5 of the same Act. Section 8(1) provides that the entry of the name of the father of a child on a birth certificate shall be prima facie evidence that the person named as the father is the father of the child. There is also the presumption of legitimacy set out in s 5 of the Act which provides that a child born to a woman during her marriage or within 10 months after the marriage has been dissolved by death or otherwise shall, in the absence of evidence to the contrary, be presumed to be the child of the mother and her husband.

[10] The effect of these two sections is that there is certainly a presumption that Nigel is the father of Tori. However, this Court is entitled under s 10 to make a declaration as to paternity if it is satisfied as to the paternity. The standard of proof is on the civil balance of probabilities.

Conclusion

[11] I am satisfied, on the balance of probabilities, that Stephen is the father of Tori. The uncontested evidence of the mother that she was having a sexual relationship with only two persons at the time, and the exclusion of Nigel by the DNA testing, leads to the conclusion that Stephen is the father. The order requested is therefore accordingly made.

Costs

[12] Ms Lister seeks costs and her total costs and disbursments are in the vicinity of $5,000. Costs are at the discretion of the Court but there are features in this case which suggest that the costs awarded should not be as generous as normally would be. In the circumstances there will be an award of costs against the First Respondent in the sum of $2,250, this sum being inclusive of disbursments and GST, if any.