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Thorpe v Greene [2021] NZFC 7723

Published 30 January 2023

Declaration as to paternity — balance of probabilities — opposition from alleged father's and grandfather's estate — DNA testing — Status of Children Act 1969, s 10 — Family Proceedings Act 1980, ss 47, 48, 49 & 50. The applicant sought a declaration from the Court that her deceased ex-partner was the father of the applicant's child. The deceased had made an application for a declaration as to paternity seven years earlier on the grounds that he was the father of the child and that he had been in a sexual relationship with the applicant mother at the time of conception. The deceased eventually disengaged from the Court process and the earlier proceedings were struck out. To grant a paternity declaration, the Court must be satisfied on the balance of probabilities that it was more likely than not that the deceased was the biological father of the child. The applicant submitted that she had engaged in a sexual relationship with the deceased, shortly after ending a relationship with a former partner in Australia. The child was born full-term, which would indicate a conception date consistent with the paternity of the deceased. DNA testing of the applicant's other partners from the same time produced negative results. Evidence was given by the applicant of the deceased and others identifying him as the father of the child alongside photographs, and the child's presence and involvement at the deceased's funeral. Finally, the second respondent (mother to the deceased) agreed to DNA testing which strongly suggested that her son was the biological father of the child. The Judge was satisfied to the requisite standard and the declaration of paternity was granted. Judgment Date: 2 August 2021 * * * Note: names have been changed to comply with legal requirements. * * *