Shaw v Banks - [2017] NZHC 2125

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 Defendant

Judgment:

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shaw v Banks

Details

AGLC: Shaw v Banks [2017] NZHC 2125
Case: [2017] NZHC 2125
Decision Date: 1 September 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Antony Brett Shaw, the plaintiff, sought a declaration of paternity from John Archibald Banks, the defendant. The plaintiff, who has lived in Japan for many years, alleged that the defendant was his biological father. The case was heard by Justice Courtney and proceeded by way of a formal proof hearing, as the defendant did not appear. The central legal issue was whether the plaintiff had proven on the balance of probabilities that the defendant was his father, thus warranting a declaration under section 10 of the Status of Children Act 1969. The court considered various pieces of evidence, including the plaintiff’s mother’s testimonies, photographs, and the defendant’s refusal to undergo a DNA test.

Justice Courtney meticulously evaluated the evidence presented, noting the importance of scrutinising the application due to its discretionary nature and the serious implications of a paternity declaration. The court assessed the credibility of the plaintiff’s mother’s accounts and cross-referenced them with other testimonies and documentary evidence. A significant factor was the physical resemblance between the plaintiff and the defendant, as well as the plaintiff’s mother’s consistent narrative supported by independent evidence. The defendant’s refusal to undergo a DNA test, despite being legally permissible to do so, was considered an adverse inference, reinforcing the likelihood of the plaintiff’s claim.

After thorough deliberation, Justice Courtney concluded that the plaintiff had sufficiently demonstrated on the balance of probabilities that the defendant was his father. The court found the plaintiff’s mother’s account credible and supported by other evidence, despite her past dishonesty. The court also highlighted the defendant’s refusal to refute the allegations or undergo a DNA test as indicative of his acknowledgment of the claim. Consequently, Justice Courtney granted the plaintiff’s application, declaring John Archibald Banks to be the father of Antony Brett Shaw. The plaintiff was awarded costs on a 2B basis.

Orders