Pawson v Holt
[2025] NZHC 205
•18 February 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-544
[2025] NZHC 205
UNDER the Declaratory Judgments Act 1908 IN THE MATTER
of an application under ss 10(2) and 5(b) of the Status of Children Act 1969 and s 3 of
the Declaratory Judgments Act 1908
BETWEEN
STEPHEN JAMES PAWSON
Applicant
AND
CAROLYN DENISE HOLT, as Executor of the Estate of the late Robert Gibson Respondent
Hearing: On the papers Counsel:
S J Pawson – self represented Applicant No appearance for Respondent
Judgment:
18 February 2025
JUDGMENT OF HARLAND J
Introduction
[1] This judgment concerns whether Stephen Pawson (Stephen) can establish that he is entitled to a declaration that the late Robert Gibson, known as Roy, was his birth father. Stephen originally sought an order to that effect in the Family Court pursuant to s 10 of the Status of Children Act 1969 (the Act) but, because of the circumstances I outline below, the Family Court held Stephen had to apply under the Declaratory Judgments Act 1908 resulting in his application being transferred to this Court.
PAWSON v HOLT [2025] NZHC 205 [18 February 2025]
[2] This proceeding was served on Roy’s executor, Ms Holt, who through counsel advised she does not wish to be heard. No other interested party has taken steps in the proceeding, despite having been served with a copy of it.
[3] I have decided to grant the declaration sought. This judgment sets out my reason for doing so.
Factual background
[4] In order to address the jurisdictional issue that led to the application being transferred, it is necessary to give some context.
[5] Roy, who was born in Ireland 1936, died in December 2018 having lived in New Zealand for 58 years.
[6]In June 1961, Roy married in Christchurch but separated in December 1965.
[7] In 1966, while Roy was separated from his wife, Stephen asserts Roy entered into a relationship with Stephen’s birth mother Elizabeth Margaret Elliott (Margaret) during which Stephen was conceived. Stephen’s basis for this belief is set out below.
[8] Around 16 January 1967, Roy sent Margaret a letter which referred to her “present condition”, Margaret then being pregnant. A copy of the letter is produced by Stephen.
[9] Stephen was born on 23 January 1967, shortly after the date of the letter. Stephen’s original birth certificate does not record the name of his birth father.
[10] Five days after Stephen’s birth, Roy sent an Inland Telegram from Christchurch Airport to Margaret confirming he had received a letter from her and was thrilled with the birth of Stephen and would be arriving in Wellington on Monday.
[11] In March 1970, Roy’s 1961 marriage was formally dissolved and in April 1970 he married a Ms Wright in Auckland.
[12] In August 1970, Stephen’s mother, Margaret, married Gary Pawson in Christchurch.
[13] On 5 October 1972, Stephen was adopted by his birth mother and Mr Pawson. Stephen’s birth certificate reflects the names of his adoptive parents.
What is the Court's jurisdiction to make the order sought?
[14] Stephen is self-represented. The Family Court appointed an experienced Family Court lawyer to provide assistance in respect of the legal issues arising from Stephen’s application. Counsel assisting concluded and the learned Family Court Judge accepted that the Supreme Court authority of Hemmes v Young meant a paternity order declaring a person to be the biological father of an adopted person is not available under s 10(2) of the Act.1
Section 10 of the Act provides:
Declaration as to paternity
(1) In this section, eligible person means a person—
(a)who is a woman and who alleges that a named person is the father of her child; or
(b)who alleges that the relationship of father and child exists between the person and another named person; or
(c)who wishes to have it determined whether the relationship of father and child exists between 2 named persons, and has a proper interest in the result.
(2) The 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.
(3) A court considering an application under subsection (2) may, either on its own initiative or on an application for the purpose by a party to the proceedings, make a declaration of non-paternity (whether the alleged father or the alleged child or both of them are living or dead) if it is proved to the court’s satisfaction that the relationship does not exist.
1 Hemmes v Young [2005] NZSC 47.
(4) If a declaration of paternity under subsection (2) is made after the death of the father or of the child, the court may, at the same or any later time, make a declaration determining, for the purposes of section 7(1)(b), whether any of the requirements of section 7(1)(b) have been satisfied.
(5) If an application under subsection (2) is made—
(a)to the Family Court, the provisions of the Family Proceedings Act 1980 (except sections 47 to 50) apply to the application as if it were an application for a paternity order under section 47 of that Act:
(b)to the High Court, the provisions of the Declaratory Judgments Act 1908 apply to the application.
(6) Every question of fact that arises in applying any of subsections (2) to (4) must be decided on a balance of probabilities.
(7) If an application made under subsection (2) or (3) is undefended, a Family Court Associate may exercise the jurisdiction of the Family Court in respect of that application and make a declaration.
[16] Section 16(2) of the Adoption Act 1955 provides that, on the making of an adoption order, the child concerned ceases for all purposes (whether civil, criminal or otherwise) to be the child of his biological parents and becomes for all purposes the child of his adopted parents. The Supreme Court noted the question it had to address was whether, in light of the adoption, the Court had the power to make declarations under the Act.
[17] The Court concluded that s 10 of the Act is not designed to be a vehicle for declaring biological relationships or biological facts.2
[18] The Court concluded when s 10(1)(b) of the Act refers to “relationships” it is to the legal relationship of father and child and that it is the legal relationships created by the Adoption Act which are the applicable ones for the purposes of the Act. As a consequence of this and s 16(3) of the Adoption Act 1955 in Hemmes, Mr Young could not in law obtain a declaration under s 10 of the Act that the legal relationship of father and child existed between him and Mr Hemmes. That was because the order for his adoption brought that relationship, if it existed, to an end and substituted the new relationship of father and child between him and his adoptive father.
2 Hemmes v Young, above n 1 at [16].
[19]However, importantly for this application, the Supreme Court said at [24]:
The issue in this case has concerned s 10 of the Status of Children Act. Our judgment relates only to the compass of that section. The conclusion we have reached does not prevent an adopted person from seeking to prove that another person is his biological parent if proof of that fact is necessary for some legal purpose such as in proceedings for a declaration of right under the Declaratory Judgments Act 1908 or in proceedings otherwise properly constituted in which the determination of fact is necessary.
(footnotes omitted)
[20] Accordingly, it is the Declaratory Judgments Act 1908 that is relied on in this proceeding. Applications under that Act are determined in this Court — hence the transfer of Stephen’s proceeding.
[21]Section 2 of the Declaratory Judgments Act 1908 provides:
No action or proceeding in the High Court shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the said Court may make binding declarations of right, whether any consequential relief is or could be claimed or not.
[22] The above provision has been described by the Supreme Court as a standalone provision which makes it clear that binding declarations of right may be made whether or not consequential relief is sought. The provision is distinct from the jurisdiction recognised by s 3 of the Declaratory Judgments Act to make declaratory orders. This is reinforced by s 11 of the Declaratory Judgments Act that recognises that declaratory judgments or orders may be made in cases where the Court “has no power to give relief in the matters to which the judgment or order relates” and irrespective of whether the matter would otherwise “be within the exclusive jurisdiction of any other court”.3
[23] While the Court’s ability to make the declaration sought by Stephen is under the 1908 Act, assistance in determining his application can be found in High Court cases dealing with the Act. This is because s 10(5)(b) of the Act provides that, if a s 10 application is made to the High Court, the provisions of the Declaratory Judgments Act 1908 apply to that application.
3 Attorney-General v Taylor [2019] 1 NZLR 213 at [95].
[24] In Re Boon, Whata J, in dealing with a s 10 application in this Court, noted that the standard of proof is the balance of probabilities.4 Whata J also noted that corroboration of the evidence produced in support of the application is not required but uncorroborated evidence will be scrutinised more closely. DNA evidence is not essential but if available is part of the corroborating evidence.
[25]Whata J referred to the following passage from Re I:5
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 a paternity has been proven on the balance of probabilities.
[26] One of the reasons Stephen seeks the declaration is that it may assist him to obtain an Irish passport. Whether any declaration this Court can make will be effective in that context will be a matter for the Irish Authorities but that is not a reason to decline making the declaration sought if the evidence supports it being made. Section 9 of the Declaratory Judgments Act confirms a declaratory judgment may be given “with respect to any act not yet done or any event which has not yet happened”.
Discussion
[27]I now assess the evidence that Roy was Stephen's father.
Documents from Stephen’s mother
[28] Some of the documents provided to Stephen by his mother have been touched on already. The fact Stephen’s mother kept the letters and telegrams from Roy is, of itself, consistent with Roy being Stephen’s father which is what Stephen’s mother had always told him. The tenor and content of those letters indicates Roy recognised he was Stephen’s father. As noted above, a letter sent shortly before Stephen’s birth by Roy to Margaret refers to her present condition and he then says:
I never really thought that I was capable…. when you first told me it appeared to be just one of those things that would rectify itself.
4 Re Boon [2017] NZHC 1509.
5 Re I (1997) 15 FRNZ 525 at 538.
[29] Roy, in his letter, refers to meeting someone who must have been a mutual acquaintance who, again it seems from the context of the letter, had updated him as to the state of Margaret’s pregnancy as Roy saying; “I was absolutely overwhelmed by what she had to say”.
[30] On 28 January 1967,6 Roy sent a telegram from Christchurch Airport to Margaret care of the Wellington Hospital. The telegram said: “Received your letter today and am thrilled arriving Monday midday”. As noted above, Stephen was born on 23 January 1967.
[31] The following year Roy sent a letter to Margaret which contained the following message: “Congratulations on your first year Stephen best wishes Roy”.
[32] On 7 October 1968, Roy sent a handwritten letter to Margaret. Roy was returning photographs which Margaret must have provided to him. Roy says he had not made a choice of any particular photo and left it to Margaret’s discretion which one to send him. Stephen’s assumption is that the photos were of him as a young child.
[33] On 5 August 1971, Roy sent a letter to Margaret from Air New Zealand at Papeete, Tahiti. Roy refers to not having been in contract for a long time and makes various references to Stephen. Stephen, in his statement of claim, says the letter refers to him as “his son”. While that is not express in the letter, the tenor and contents of the letter are consistent with Stephen’s claim that in the letter Roy refers to him as his son.
[34] Stephen describes being present in January 2000 when Roy’s daughter, Victoria, was married, having been invited to attend the wedding reception. He did not engage with Roy at that reception but he did meet Roy’s sister who lived in Ireland and who had come to New Zealand for the wedding. Stephen met up with Roy’s sister on three further occasions when she visited New Zealand in October 2001, February 2003 and April 2005. Stephen had some intermittent contact with Victoria up to 2006 when he also lived in Auckland.
6 There is a discrepancy in the date this telegram was sent: some of the documentation refers to 26 January 1967 and other documentation refers to 28 January 1967. Both dates are within a few days of Stephen being born on 23 January 1967.
[35] While Stephen wrote to Roy in January 2014, he received no response. In July 2017, Stephen called at Roy’s address where they met for the first time and had a discussion, covered in more detail below.
Meeting with Roy at his home address on 16 July 2017
[36] Stephen describes being in Auckland in July 2017 with his youngest son while staying with his friend, Neil Barton. Neil drove Stephen and his son to Roy’s property and Stephen describes the visit as a spur of the moment decision. Stephen describes knocking on the door and it being answered by Roy. Stephen introduced himself and said to Roy that he was his son. Stephen says that Roy acknowledged this and Stephen asked if they could go inside. Stephen, his son and Neil were invited in. The chat lasted about an hour with Stephen outlining his life and passing on that his mother had died. Stephen discussed his career and that he had two children and had met his half-sister, Victoria.
[37] At the Court’s request, Stephen arranged for Mr Barton to file an affidavit setting out a recollection of what happened at the July 2017 meeting. Mr Barton refers to having known Stephen since September 1988 and that they had remained friends throughout.
[38] Mr Barton says he recalls the meeting with Roy clearly. His account is entirely consistent with Stephen’s account, albeit Mr Barton thinks the meeting may have been a little shorter than that described by Stephen.
[39] Mr Barton confirms Roy acknowledged he was Stephen’s father at the meeting. Mr Barton describes the meeting as being cordial and Roy being engaging.
[40] Mr Barton can confirm the date of the meeting through a photograph he was able to find of Stephen and his son’s visit to Auckland which, from its date signature, confirms Stephen’s evidence as to when the meeting took place.
Lack of DNA evidence
[41] I note Stephen has requested that Roy’s daughter, Victoria, provide a DNA sample to assist with this application. Stephen’s evidence is that, while Victoria’s initial indications were that she would cooperate, she has not responded to recent contact. Stephen’s last contact with Victoria was in May 2024.
[42] As already noted, the absence of DNA evidence is not fatal to Stephen’s application. DNA evidence is obviously helpful but if other evidence establishes on the balance of probabilities that Roy was Stephen’s father then Stephen is entitled to the order that he seeks.
Conclusion
[43] I am satisfied that the evidence Stephen has put before the Court meets that standard for, in summary, the following reasons:
(a) Stephen’s mother was open with him that Roy was his birth father. As noted, that Stephen’s mother kept the original letters and telegrams from Roy is consistent with what she told Stephen as is the timing and content of those letters and telegrams.
(b) Stephen had a degree of connection with Roy’s family including attending Victoria’s wedding and connecting with Roy’s sister.
(c) Roy acknowledged in the presence of Mr Barton that he was Stephen’s father.
(d) Roy’s executor who had been married to Roy from 19 April 1970 to 17 November 1996 has not opposed the application.
[44] Accordingly, I am satisfied it is in order to make a declaration under s 2 of the Declaratory Judgments Act 1908 that Robert Gibson born November 1936 at Castledawson, County Londonderry, Northern Ireland was the biological father of Stephen James Pawson.
Result
[45] I make a declaration under s 2 of the Declaratory Judgments Act 1908 that Robert Gibson, born November 1936 at Castledawson, County Londonderry, Northern Ireland, was the biological father of Stephen James Pawson.
Harland J
Copy to:
S J Pawson, Christchurch (Applicant)
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