A high court judge has ruled that former cabinet minister and Auckland mayor John Banks is the paternal father of Antony Brett Shaw.
In a just released decision, Justice Patricia Courtney ruled that on the balance of probabilities, and taking into account Banks' refusal to undergo a DNA test or engage in the legal process, she was prepared to make a legal declaration regarding Shaw's paternity claim.
Shaw, a Japan-based English language teacher, took court proceedings against Banks last year after the conservative politician refused to acknowledge that he was Shaw's blood relative.
In a statement, Shaw's lawyer, Jacque Lethbridge, said her client was disappointed that he had to endure a stressful, costly and public court action that could have been avoided had Banks engaged in private discussions which Shaw and his family attempted on several occasions, and had he agreed to a DNA test.
"Mr Shaw pursued this action not only to obtain certainty as to his parentage but also to remove the stigma of illegitimacy that he has had to deal with since learning of the true situation in 1999. Mr Shaw has also pursued this litigation for all those people that may, through no fault of their own other than by virtue of the fact of their birth, have found themselves in a similar situation to him."
Shaw said: "My case shines a light on a painful and shameful aspect of our social history. In the 1960s the maternity wards of New Zealand hospitals were overflowing with babies needing adoption. My mother said she was going to have me adopted but a home could not be found so she kept me. How many thousands of New Zealand children suffered from being put up for adoption and their mothers suffered from having to give them up.
"Mr Banks could have righted the wrongs of the past by taking responsibility now and it is disappointing that he did not have the courage or courtesy to do so and I was forced to go through this process. I am grateful that justice has been done in my case and the decision goes some way to alleviating the pain and suffering I have gone through."
Judge Courtney said she accepted there was a "high degree of similarity" between photographs of Banks and Shaw supplied to the court in evidence.
She accepted that Shaw's mother Pamela Mayes had been in a sexual relationship with Banks in 1969, the year Shaw was conceived.
"I also accept the relationship was exclusive, at least for Mrs Mayes. She says that she was not seeing 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."
Justice Courtney said it was not credible to think that Harry Wong, who Shaw grew up believing was his father, was his paternal relative.
"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."
The judge said Shaw did not have a Chinese appearance and Shaw's uncle had labelled the physical likeness between Shaw and Banks as "striking".
"This is of course a matter of impression but I accept that there is a high degree of similarity between photographs of the two."
The judge accepted that Banks had resumed his relationship with Mayes for a time when Shaw was a very young child "and that during that time Mr Banks acknowledged that he was Mr Shaw's father".
"I take into account the fact that Mr Banks has chosen not to give evidence refuting the allegation."
"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 al 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."
"I am satisfied on the balance of probabilities Mr Banks is Mr Shaw's father. I therefore make the declaration sought."
Last month the High Court heard allegations that Banks had impregnated Mayes in a Hamilton motel room in July 1969. When she told him she was pregnant it's alleged he urged her to get an abortion, then form a new relationship and tell her new sexual partner that he was Shaw's father.
In a sworn affidavit, Mayes told the court Banks had supplied her with drugs to make her miscarry and pressured her to take the required dose.
When she refused to do so, he ended the relationship, making it clear he wanted nothing more to do with the baby.
Young and unmarried, Mayes told the court she then told Chinese man Harry Wong he was the father after a brief liaison months after becoming pregnant with Shaw. Wong paid child support if $5 a week for the next 15 years but took no role in Shaw's upbringing.
Shaw was always confused by his lack of Chinese features, and was bullied at school, an labelled a "chink".
The judge ruled Banks's refusal to undergo a DNA test was an admissible fact from which an adverse inference could be drawn.
She also ruled that a letter written by Mayes to Banks was admissible. It was penned the day after Mayes met Banks at St Lukes Mall in November 1999 to discuss finally telling Shaw the truth after 29 years.
"Her evidence is that, following that letter, 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.
A photo of Banks, Mayes and Banks' sister standing together beside a car wearing swimsuits was submitted as evidence of the pair's relationship.
In her affidavit, Mayes said she decided to come clean after Banks' emotional 1999 valedictory speech, in which he spoke of the "crushing heartache" of growing up without a mother and father.
She met him at St Lukes Mall and she asked him if he would meet Shaw and acknowledge his son on the birth certificate. Banks told her he would like to do so, but did not want to meet Shaw's wife or son "because he wanted to keep the matter private".
"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."
The decision sets out how Shaw, on learning that Banks was his real father by letter in 1999, travelled back to New Zealand the next year with his wife and child in a bid to confront Banks.
He went to Banks' Paritai Dr home in Orakei but only spoke to Banks' wife Amanda, who told Shaw she thought it was a "hoax". Shaw thanked her for her time and left. He later wrote a letter to Banks but never received a reply.
"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."
Shaw's son Kent was diagnosed as autistic the following year.
Shaw's uncle, Bernard Shaw, telephoned Banks after revelations emerged he was the father. In an affidavit he described the conversation as "amicable".
"I explained that it was not Antony's fault that all 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'."
Shaw finally met Banks face-to-face last year when his birth father was being sworn in as a JP at Auckland District Court.
But when Shaw introduced himself, telling Banks he had travelled all the way from Japan to see him, Banks was reluctant to engage.
His face "dropped", Shaw said in an affidavit, and Banks' aids rebuffed Shaw, labelling him a "stalker" and unhinged.