ALLAN V PERPETUAL TRUST LTD HC DUN CIV 2011-412-000724

ALLAN V PERPETUAL TRUST LTD HC DUN CIV 2011-412-000724

Although some of the Family Court's discounting of hearsay and the wife's evidence was incorrect, on a full review of the evidence the appellate court was not satisfied on the balance of probabilities that Harry was the appellant's biological father; the evidence was equivocal (DNA did not identify the father, photographic comparisons were inconclusive, conflicting documentary evidence including Harry's will and solicitor instructions pointed to only Margaret), therefore the appeal failed and the declaration was refused.

Citation
openlaw-78890e98_fdc0_4fec_b6cf_4c8e38fb2fa3.pdf
Parties
Appellant: Allan; First Respondent: Perpetual Trust Ltd; Second Respondent: Margaret
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 February 2012
Procedural Posture
Appeal Under S 174 Family Proceedings Act 1980 (status of Children Act 1969) / High Court Appeal (hearing and Judgment)
Outcome
Appeal dismissed; declaration that Harry is the appellant's biological father refused; suppression of parties' and deceased's names granted.
Legal Topics
Paternity Declaration, Presumption of Parentage, DNA Evidence, Admissibility of Hearsay, Suppression/anonymity
Family Law Evidence Probate/wills Paternity Declaration Presumption of Parentage DNA Evidence Admissibility of Hearsay Suppression/anonymity

Case Brief

Summary, issues, holding and outcome

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Parties

Allan

Appellant

Perpetual Trust Ltd

First Respondent

Margaret

Second Respondent

Procedural Posture

Appeal Under S 174 Family Proceedings Act 1980 (status of Children Act 1969) / High Court Appeal (hearing and Judgment)

Legal Issues

  1. 1 Whether the Family Court erred in discounting family history and wife's evidence
  2. 2 Whether appellant discharged the burden to rebut statutory presumption of parentage and prove on balance of probabilities that Harry is his biological father
  3. 3 Proper weight to be given to DNA evidence, photographic resemblance and hearsay admissions

Ratio Decidendi

Although some of the Family Court's discounting of hearsay and the wife's evidence was incorrect, on a full review of the evidence the appellate court was not satisfied on the balance of probabilities that Harry was the appellant's biological father; the evidence was equivocal (DNA did not identify the father, photographic comparisons were inconclusive, conflicting documentary evidence including Harry's will and solicitor instructions pointed to only Margaret), therefore the appeal failed and the declaration was refused.

Court Disposition

Appeal dismissed; declaration that Harry is the appellant's biological father refused; suppression of parties' and deceased's names granted.

Orders

  • Appeal dismissed
  • Declaration that Harry is the appellant's biological father refused