Shaw v Banks
[2017] NZHC 2125
•1 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-003301 [2017] NZHC 2125
BETWEEN ANTONY BRETT SHAW
Plaintiff
AND
JOHN ARCHIBALD BANKS Defendant
Hearing: 23 August 2017 Appearances:
J E M Lethbridge for Plaintiff
No appearance for DefendantJudgment:
1 September 2017
JUDGMENT OF COURTNEY
This judgment was delivered by Justice Courtney on 1 September 2017 at 3.30 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date……………………….
SHAW v BANKS [2017] NZHC 2125 [1 September 2017]
Introduction
[1] As a child Antony Brett Shaw believed his father to be Chinese, even though he does not have Chinese features and the man his mother named played no part in his upbringing. When Mr Shaw was 29 years old his mother told him that his father was actually John Archibald Banks, a man with whom she had an intimate relationship at the time Mr Shaw was conceived.
[2] Mr Shaw is now aged 47 and lives permanently in Japan with his wife and son. He has applied under s 10 of the Status of Children Act 1969 (SoCA) for a declaration that Mr Banks is his father. Mr Banks took no steps in the proceeding and the application proceeded by way of a formal proof hearing.1
Approach to applications under s 10 of the Status of Children Act
[3] SoCA was enacted to remove the legal disabilities of children born out of wedlock.2 To that end, s 10 permits the court to make a declaration of paternity.3
SoCA was enacted at a time when social norms were very different from those of today, particularly in relation to the attitudes and rights of those born to unmarried parents. Nevertheless, the making of such a declaration is, as Gendall J observed in Re I, “a serious matter because paternity is a matter of status affecting the heritage, lineage and possible inheritance rights of the plaintiff”.4
[4] Under s 10, a person who alleges that the relationship of father and child exists between that person and another named person is eligible to apply for a declaration of paternity.5 The making of a declaration of paternity is discretionary upon application by an eligible person and proof to the Court’s satisfaction that the relationship exists.6
[5] An application for a declaration of paternity is highly fact-specific. Care is required, particularly where the matter proceeds without opposition, to ensure that
1 There was satisfactory evidence that Mr Banks had been served with all of the documents in the proceeding.
2 Hemmes v Young [2005] NZSC 47, [2006] 2 NZLR 1 at [9].
3 Section 10(2).
4 Re I (dec’d) [1977] NZFLR 514 at 527.
5 Section 10(1)(b).
the rules of evidence are scrupulously observed. In this case there are some evidential matters to address before going on to consider the application.
[6] First, the standard of proof on a s 10 application is the balance of probabilities; the Court must weigh all the admissible evidence to conclude whether paternity is more probable than not.7
[7] Secondly, it is not uncommon in such cases (including the present case) for a respondent to have been invited to undergo a DNA test to assist in the determination. Refusal to do so is an admissible fact, from which an adverse inference may be drawn. Section 57 of the Family Proceedings Act 1980 provides that in any civil proceedings in which the natural parentage of a child is in issue, whether or not the Court has recommended that parentage tests should be carried out, evidence may be given as to the refusal of that person to consent and:
Subject to the right of the person who refuses to consent to the parentage tests to explain the reasons for that person’s refusal, and to cross-examine witnesses and call evidence, the court may draw such inferences (if any) from the fact of refusal as appear to it to be proper in the circumstances.
[8] Thirdly, letters written by Mr Shaw’s mother, Mrs Mayes, to Mr Banks and Mr Banks’ wife have been put in evidence. I consider that only one, the letter to Mr Banks, is admissible. The letters are annexed to the affidavit of a freelance journalist, Stephen d’Antal, who wrote a story about Mrs Mayes’ assertions that was published in the Woman’s Day magazine in 2001. They reflect Mrs Mayes’ evidence and are accordingly previous consistent statements which are admissible only if they meet the requirements of s 35(2) of the Evidence Act 2006, namely that they are necessary to meet an allegation of invention or that they are an integral part of the narrative of the case.
[9] The first letter is addressed to Mr Banks and said to have been written the day after Mrs Mayes met with him in November 1999. Her evidence is that, following that letter, Mr Banks telephoned her and accused her of being motivated by money and encouraged her to say that she had concocted the story about him being Mr Shaw’s father. I accept that the contents of Mrs Maye’s letter are integral to this aspect of the narrative and therefore admissible. The other letters are addressed to
Mrs Banks. They post-date an allegation by Mrs Banks to Mr Shaw that the story was a hoax and therefore are not admissible to meet that allegation. Nor are they integral to the narrative.
Evidence relied on to prove paternity
Relationship between Mr Banks and Mrs Mayes: 1966 – 1974
[10] Between 1966 and 1969 Mrs Mayes was working as a nurse at Waikato Hospital. For some of that period she lived in the nurses’ home and for some of the time with her parents in Hamilton. She met Mr Banks at a party when she was 19. He was working as a travelling salesman for Pfizer Pharmaceuticals. Mrs Mayes’ brother, Bernard Shaw, recalls Mrs Mayes going out regularly with Mr Banks and that the relationship appeared to him as that of boyfriend and girlfriend. There is a photograph taken around this time showing Mrs Mayes, Mr Banks and Mr Banks’ sister standing together beside a car wearing swimsuits. This is annexed to Mr d’Antal’s affidavit and confirmed by Mrs Mayes and her brother, Bernard Shaw (Mr Shaw’s uncle) as authentic.
[11] Mrs Mayes described spending a night with Mr Banks at a motel opposite the Te Rapa Racecourse in July 1969. They had sexual intercourse. Mrs Mayes says that she was seeing only Mr Banks at that time. She had previously been taking the oral contraceptive pill but had recently stopped taking it on medical advice after developing a pain in her calf. She subsequently found that she was pregnant.
[12] Mrs Mayes makes serious allegations against Mr Banks about what happened next. She says that when told of the pregnancy Mr Banks encouraged her to terminate it and arranged for a friend who worked for another pharmaceutical company to obtain quinine tablets in the hope of causing a miscarriage. She describes an occasion when both Mr Banks and his friend were present and told her how many tablets to take. Mrs Mayes was scared, however, and despite pressure from Mr Banks, refused to take the pills. She says that:
After refusing to take the pills John did not want to know me. John told me to find someone else and tell them it was their baby.
[13] Mrs Mayes commenced a brief relationship with a local Hamilton man, Harry Wong, knowing that she was some months’ pregnant.8 She allowed him to believe that the child was his. The relationship ended before Mr Shaw was born. However, Mr Wong (apparently under pressure from Mrs Mayes’ family) accepted that he was the father and agreed to pay child support of $5 a week, which he did for 15 years.
[14] Mrs Mayes went to a home for unmarried mothers in Auckland for the birth of her baby. Although she had allowed Mr Wong to take financial responsibility for the baby, she drew the line at entering false details on the birth certificate. No information about Mr Shaw’s father is recorded on his birth certificate.
The relationship with Mr Banks is rekindled: 1971 – 1973
[15] Mrs Mayes went back to Hamilton after the birth but moved permanently to Auckland when Mr Shaw was nine months old, early 1971. There had been no contact between her and Mr Banks since their relationship had ended early in Mrs Mayes’ pregnancy. Then Mr Banks came to her flat in Auckland unannounced. He claimed to have seen her putting the rubbish out and decided to come and see her. She regards this as unlikely, given that she did not live on a through street, and suspected that he had obtained the address from her family.
[16] The relationship between Mrs Mayes and Mr Banks resumed. They spent time together. Sometimes they took Mr Shaw with them. Sometimes they went to Mr Banks’ mother’s house in Orewa. On one occasion Mr Banks gave Mr Shaw money to buy a present for his third birthday, a money box from a shop near to the coffee shop that Mr Banks then owned, which Mr Shaw still has. Mrs Mayes says that during this period Mr Banks acknowledged that he was Mr Shaw’s father.
[17] Although Mrs Mayes had hopes that the three of them could be a family, the relationship broke up again. In 1974 Mrs Mayes married her current husband, with
whom she has four children.
8 Mr Wong is now known under another name but I refer to him as Mr Wong, which is accurate for the purposes of the narrative.
Mrs Mayes raises the issue of paternity with Mr Banks: 1997 – 2000
[18] Mr Shaw was raised by Mr and Mrs Mayes. Although the matter was never discussed it is apparent that there were doubts within Mr Shaw’s family as to the identity of his father. Mr Shaw snr (Mr Shaw’s uncle) wondered whether Mr Wong really was the father because Mr Shaw was “blonde and cherubic”. Photographs of Mr Shaw as a child and young man show no sign at all of Chinese heritage. Mr Wong played no part in Mr Shaw’s upbringing; they met only once when Mr Shaw was 20. Nevertheless, Mrs Mayes said nothing to her friends or family about Mr Banks being Mr Shaw’s father and did not intend to say anything. Then two things happened which caused her to change her mind.
[19] The first was the birth of Mr Shaw’s own son, Kent. Mrs Mayes put that as
1999 but I am satisfied that it was 1997 because she linked the birth to the year of her 50th birthday which was in 1997 (she was born in 1947) and a photograph in the
2001 Woman’s Day article shows Mr Shaw with Kent, then aged three. On Mrs Mayes’ view the child was Mr Banks’ grandson. She contacted Mr Banks when she was in Wellington and they had dinner together. She told him about Kent and showed him photographs of Kent and Mr Shaw. Mr Banks said that Mr Shaw looked like him (Mr Banks).
[20] The second event was in 1999. Mr Banks, who had been a Member of Parliament for some 18 years, was retiring that year. Mrs Mayes saw TV footage of his valedictory speech, delivered on 5 October 1999. The Hansard record of the speech confirms Mrs Mayes’ recollection of Mr Banks speaking of “the crushing heartache” of living without a mother and father. Mrs Mayes’ impression was that Mr Banks had been so upset that he was close to tears. She decided then that she should tell Mr Shaw about Mr Banks being his father.
[21] Mrs Mayes contacted Mr Banks and they met at the St Lukes shopping mall on 22 November 1999. She asked him if he would meet Mr Shaw and Mr Banks said that he would like to do so but did not want to meet Mr Shaw’s wife or child because he wanted to keep the matter private. She asked him if he would have a DNA test but he said that he would not. Mrs Mayes recorded this meeting in the letter to Mr Banks dated 23 November 1999 in which she said, among other things, that she would like Mr Banks to acknowledge Mr Shaw on the birth certificate.
Mrs Mayes says that Mr Banks’ attitude changed following that letter. He telephoned her and reiterated that he would not undergo a DNA test and would not allow his name to go on the birth certificate. He accused her of being motivated by money, tried to persuade her to say that she had concocted the story and threatened to sue her if she took matters further.
[22] Mrs Mayes sought legal advice. Her solicitor wrote to Mr Banks inviting him to sign a consent memorandum acknowledging that he was Mr Shaw’s father. Mr Banks did not respond.
[23] Mrs Mayes sought assistance from a counsellor from the Family Court. The counsellor was unable to make contact with Mr Banks.
Mr Shaw’s contact with Mr Banks: 2000 – 2016
[24] In December 1999 Mr Shaw received a letter from Mrs Mayes explaining how she had met Mr Banks, the circumstances of Mr Shaw’s conception, the renewed contact with Mr Banks after Mr Shaw’s birth and her more recent contact with him. Mr Shaw was shocked. He contacted his uncle who confirmed that Mrs Mayes had had a relationship with Mr Banks in the late 1960s.
[25] Mr Shaw was already living permanently in Japan and unaware that Mr Banks was a public figure in New Zealand. He came to New Zealand with his wife and son in 2000 for the purpose of arranging a meeting with Mr Banks to talk about the issue of paternity. In early April 2000 Mr Shaw went to Mr Banks’ home. Mr Banks was not home but Mr Shaw spoke briefly with his wife, Amanda Banks, who said that she thought the claim of paternity was a hoax. A few days later Mr Shaw wrote to Mr Banks asking that he contact him. Mr Banks did not respond.
[26] Mr Shaw returned to Japan. He describes himself as being distraught and devastated by his failed attempts to meet with Mr Banks. He was also very angry with Mrs Mayes and from that point was estranged from her. The following year, in
2001, Kent was diagnosed as autistic and Mr Shaw devoted his time and energy to his personal commitments in Japan.
[27] At around the time that Mr Shaw was in New Zealand in 2000 Mr Shaw snr telephoned Mr Banks himself. Mr Shaw described the conversation as follows:
We had an amicable conversation. I explained that it was not Antony’s fault that all of this happened and that, while I had no time for Pamela, Antony deserved to know who his father was. John responded by saying that his QC’s advice was not to take a paternity test voluntarily and he was going to follow that advice but he was not against meeting Antony.
I said to John that I had seen him on television and could have sworn I was looking at Antony. I said to John that I knew he was in a relationship with Pamela having met him and engaged with him when he came and went from our family home. John said to me in response “I am not going to tell porkies because I used to have sex with your sister and I’m not denying I could be the father”.
[28] In 2016 Mr Shaw was in New Zealand again, visiting his uncle. He went to the District Court on 24 April 2016, the day on which Mr Banks was being sworn in as a Justice of the Peace. He approached Mr Banks and tried to talk to him but was rebuffed.
Proof on the balance of probabilities?
[29] Mr Shaw’s application rests to a large extent upon Mrs Mayes’ evidence. On her own account, Mrs Mayes has not always been honest. However, there is independent support for the essential elements of her account. My assessment of the evidence is as follows.
[30] First, I accept that Mrs Mayes was in a sexual relationship with Mr Banks in
1969. Her assertion is consistent with Mr Shaw snr’s description of them as boyfriend and girlfriend and his evidence of Mr Banks’ acknowledgement that there had been a sexual relationship between them. I also accept that the relationship was exclusive, at least for Mrs Mayes. She says that she was not seeing anyone else and Mr Shaw snr does not mention anyone else. Moreover, it is reasonable to infer that if there had been the possibility of another man being the father Mrs Mayes would have named him as the father rather than starting a new relationship with a Chinese man, a plan that had obvious pitfalls.
[31] Secondly, it is not credible to think that Mr Wong is Mr Shaw’s father. It is true that he accepted Mr Shaw as his child and paid child support for 15 years. But he is not recorded on Mr Shaw’s birth certificate as the father and played no part in his life, despite contributing financially. The fact that he is not named on the birth certificate is consistent with Mrs Mayes’ account that, notwithstanding her earlier
dishonesty on the point, she was not willing to go so far as to make a false statement on the birth certificate.
[32] Thirdly, not only does Mr Shaw not have the appearance of having a Chinese father, his uncle has deposed to the physical likeness of Mr Shaw to Mr Banks, which he describes as “striking”. This is, of course, a matter of impression but I accept that there is a high degree of similarity between the photographs of the two.
[33] Fourthly, I accept that Mr Banks and Mrs Mayes resumed their relationship for a time when Mr Shaw was a very young child and that during that time Mr Banks acknowledged that he was Mr Shaw’s father. Although there is no independent evidence of this acknowledgement, in assessing it I take into account the fact that Mr Banks has chosen not to give evidence refuting the allegation.9
[34] Finally, I am satisfied from the evidence that Mr Banks has been invited by Mrs Mayes to undergo a DNA test for the purposes of establishing paternity. On Mr Shaw snr’s evidence Mr Banks declined to do so, on legal advice. In considering the weight I give to Mr Banks’ refusal, I take that into account. However, given all of the other surrounding circumstances, including his failure to take any steps at all to refute the various allegations and the obvious strength of Mr Shaw’s application, it is proper to infer from Mr Banks’ refusal to undergo a DNA test that, in his view, the result would be supportive of Mr Shaw’s claim.
Result
[35] I am satisfied on the balance of probabilities that Mr Banks is Mr Shaw’s father. I therefore make the declaration sought, that John Archibald Banks is the father of Antony Brett Shaw.
[36] Mr Shaw is entitled to costs on a 2B basis.
P Courtney J
9 Insurance Commissioner v Joyce (1948) 77 CLR 39 at 49 and 61; British Railways Board v
Herrington [1972] AC 877 (HL) at 930.
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