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Keelan v Peach HC Gisborne SC4/01 [2002] NZHC 258; [2002] NZFLR 481; (2002) 22 FRNZ 11 (25 March 2002)

Last Updated: 14 November 2013

IN THE HIGH COURT OF NEW ZEALAND
GISBORNE REGISTRY, SC4/01

IN THE MATTER of the Family Protection Act 1955

AND

IN THE MATTER of the Estate of Hamana Walker,
deceased

BETWEEN NGAWINI KEELAN
Plaintiff

AND COLIN WALTER CONYERS PEACH
and BEAUMANES RASMUSSEN
Defendant

Hearing: 1 March 2002

Counsel: L Watson for the Plaintiff
D J Sharp for the residuary beneficiary
G Webb for the Defendants

Judgment: 25 March 2002

RESERVED JUDGMENT OF PATERSON J

Solicitors:
Hanning Connor, P O Box 10376, Wellington
Burnard Bull & Co. P O Box 946, Gisborne
Nolans, P O Box 1141, Gisborne

[1] The issue for determination comes before the Court by way of a preliminary question pursuant to r 418 of the High Court Rules. At issue is whether a whangai (a child adopted pursuant to Maori custom) comes within the class of persons entitled to claim under s 3 of the Family Protection Act 1955 (the Act).

Background

[2] The plaintiff brings these proceedings in her capacity as the executrix of the estate of her late father (Sam Keelan) who died in 1970. Sam Keelan predeceased the deceased Hamana Walker by approximately 16 years.

[3] Sam Keelan was adopted in or about the year 1929 according to Maori custom (Nga tikanga Maori) by Hamana Walker. In common with many other adoptions according to tikanga, there was no formal adoption application or order under the provisions of the Infants Act 1908 (the predecessor of the Adoption Act 1955).

[4] The persons who are entitled to claim under the Act are defined in s 3 of the Act. For the purposes of this hearing the relevant class is “the children of the deceased.” The estate of Sam Keelan can only be a claimant under the provisions of the Act if Sam Keelan was a child of the deceased Hamana Walker.

[5] The form of the question was settled by consent and reads:

“Is a whangai (a child adopted according to Maori custom) a “child” within the meaning of section 3 Family Protection Act 1955 so as to be entitled to make a claim under that Act for provision from the estate of a customary parent of the whangai?”

Counsel agreed on the statement of facts which was before the Court and the plaintiff filed two affidavits giving details of tikanga as it relates to whangai. One is from Dame Joan Metge, a social anthropologist, and the other is from a Gisborne elder, Mrs Nikora. These affidavits give a detailed history of Maori customary adoption. The evidence of Dame Joan Metge and Mrs Nikora was not challenged and neither were required for cross-examination.

[6] Dame Joan Metge’s evidence was that “whangai”, “atawhai” and “taurima” are synonyms favoured in different tribal areas for Maori customary adoption. In referring to the relationship which Dame Joan Metge prefers to call “atawhai” she noted:

“a wide range of variation in almost every aspect of the relationship: in the age at which it is established and the length of time it lasts, in the reasons given for establishing the relationship and the process used, and in the arrangements made with regard to the inheritance of names and property. I came to the conclusion that there is no single, general, invariable rule or prescription governing what would happen in such a relationship: each particular relationship is worked out and shaped in its particular context.”

[7] Mrs Nikora’s evidence was that in her iwi there are two types of customary adoptions which are both often referred to in a general sense as “whangai” but the two types are quite different and have different implications. First, a whangai adoption may be where a child is taken in to be cared for by the adoptive family. The child does not have to be a blood relative to become a whangai. Such an arrangement does not impose the same obligations on the adoptive family as the second category. The second category of “whangai” adoption is the “tamaiti awhi” adoption. The key feature about this type of relationship is the close genealogical connection between the adoptive parent and the child. The “tamaiti awhi” is normally accorded all the rights and privileges which would have been granted to a natural child of the adoptive parent (matua whangai).

Preliminary Comment on term “whangai”

[8] The preliminary question was framed in terms agreed by the parties. Mr Watson submitted that nothing turns on the different concepts of “whangai” referred to in the evidence, as the term “whangai” meaning Maori customary adoption is used in a general sense and does not apply to any specific tribal area. There are, in my view, difficulties with this submission and the evidence adduced on behalf of the plaintiff. There is obviously more than one type of whangai adoption. Mrs Nikora’s “tamaiti awhi” adoption and Dame Joan Metge’s “atawhai” adoption have many similarities with an adoption under the Adoption Act. Although the matter is not decisive at the end of the day the suggestion that every whangai is a child of the deceased for the purposes of s 3 of the Act weakens the plaintiff’s case. The first category of whangai adoption referred to by Mrs Nikora appears in many respects to be more a “foster child” arrangement than an adoption. In the circumstances it may have been more appropriate to refer in the preliminary question to a tamaiti awhi adoption rather than use the more general term whangai.

The Plaintiff’s Submissions

[9] Mr Watson’s submissions on behalf of the plaintiff were long and detailed. They were made under three main headings:

(a) That “whangai” was included in the term “children of the deceased” as used in the Family Protection Act;

(b) That s 19 of the Adoption Act 1955 did not extinguish the customary rights of whangai; and

(c) The conclusion that “children of the deceased” included whangai was supported by the Treaty of Waitangi, the International Convention on the Rights of the Child, and the New Zealand Bill of Rights Act 1990.

[10] The submissions made by Mr Watson will be more particularly referred to later in this judgment. The primary submission that the phrase “child of the deceased” as used in the Act included whangai was supported under five headings:

(a) The scheme and history of the Act;

(b) The widening definitions of “child” in family maintenance and support legislation so as to include other children than natural or adopted children who are “members of the family”;

(c) The acceptance by Courts in the family protection context of the extension or a moral duty of the testator to children adopted according to Maori custom;

(d) The case of R v P [1991] 2 NZLR 116, where the phrase “child of hers” was given an extended meaning in a criminal law context;

(e) The fact that “child” must be interpreted in accordance with human rights instruments.

The Opposing Submissions

[11] The main opposing submissions were made by Mr Sharp on behalf of the beneficiary of the estate. Mr Webb, for the trustees, supported those submissions but did not take an adversarial position. Mr Sharp’s basic premise was that the classes of applicants who may claim under the Family Protection Act are defined by s 3 of that Act, and do not include whangai; a “child of the deceased” for the purposes of that Act is a natural child; “child” in its ordinary meaning is the offspring of a male and female; s 16 of the Adoption Act which provides that on an adoption under that Act, the adopted child shall be deemed to become the child of the adoptive parents and the adoptive parents will be deemed to become the parents of the child is significant in that there is no statutory recognition of the status of whangai; case law indicates that statutory law is construed strictly on its terms unaffected by customary law; and that if whangai are to become claimants under the Family Protection Act, then a legislative change is needed.

Preliminary Comment on Meaning

[12] In interpreting a statutory provision, it is necessary to read the words used in context with a view to giving effect to the purpose of the legislation. Words may be given a liberal interpretation to ensure that the purpose of the legislation is achieved. However, the starting point is the actual words of the Act. These words are to be given their natural meaning as they appear in context and taking into account their purpose.

[13] It was common ground that the combined effect of ss 3 and 4(1) of the Act is that a claimant for proper maintenance and support from an estate of a deceased must come within one of the categories detailed in s 3(1) of the Act. The plaintiff’s position is that a whangai comes within the category “children of the deceased” in s 3 (1)(b).

[14] The natural and ordinary meaning of “the children of the deceased”, in my view, is that a child must be an offspring of the deceased. While the word “children” in some contexts may be synonymous with words such as “infants”, there is no age restriction on “children” for the purposes of being claimants under the Act. “Children” in s 3 of the Act is not synonymous with “infants.” Further, the word “children” is qualified by the phrase “of the deceased”. This leads to a natural meaning that the deceased must have either fathered the child or given birth to the child.

[15] The context of the Act does not weaken the initial view that “children of the deceased” means the natural children of the deceased. While the Act does not define “children”, the term “child of a marriage” is defined as including “any child whose parents marry each other subsequent to his birth.” While the definition is not all embracing, it does carry the imputation that the parents must be the birth parents of the child. The ordinary dictionary meaning of “parent” is “one who has begotten or borne offspring, father or mother.” It follows that the natural meaning of “child of a marriage” is one who has either been begotten or borne by a party to that marriage. The term “children of a marriage” appears in s 3(1)(e) of the Act and it is unlikely, in my view, that “child” and “children” would be given different meanings in different portions of s 3. The contextural implication is that a child of the deceased for the purposes of s 3 of the Act is a child which the deceased has either begotten or borne. A whangai does not come within such class. The issue is whether the other matters upon which Mr Watson relies lead to the conclusion that under a purposive interpretation, the correct meaning of “the children of the deceased” includes whangai.

Consideration of Plaintiff’s Submissions on Meaning

[16] Mr Watson, in his submissions on the scheme of the Act, referred to the long title of the Act which states the Act is a consolidation and amendment of enactments relating to claims for maintenance and support out of the estate of deceased persons. As such, a whangai who has the right under tikanga for maintenance and support should rightly be considered as a claimant under the Act. This submission has force but needs to be balanced against two other considerations. First, s 3 of the Act sets out specified claimants but does not include all persons who may have moral claims on the estate of a deceased. This matter will be referred to later. Secondly, the evidence of Mrs Nikora suggests that not all whangai have claims on the estate of a deceased person for maintenance and support. It is only those who can be considered tamaiti awhi who would have a claim for maintenance and support. If a whangai is capable of being a child of the deceased for the purposes of s 3, it would, in my view, be necessary for the Court on each application by a whangai to consider the relationship in some detail to determine whether or not the whangai was a person entitled to maintenance and support.

[17] It was submitted that the legislative history supports the inclusion of whangai. The original predecessor of the Act was the Testators Family Maintenance Act 1900. Under its provisions the deceased’s spouse and any legitimate children dependant on the deceased were entitled to claim. In 1936, illegitimate children, provided parenthood had been admitted or established during the deceased’s lifetime, were introduced as claimants by the Statutes Amendment Act 1936. The Statutes Amendment Act 1947 extended the categories to grandchildren, adopted children and adopted grandchildren. In 1995, the Act expanded the category further to include stepchildren who were being maintained wholly or partly by the deceased immediately before his or her death. From 1 February 2002, a “de facto partner” may be a claimant by a statutory amendment which brings the Act into line with the Property (Relationships) Act 1976. These provisions applied and still apply equally to European and Maori estates, albeit that in some periods, the jurisdiction in Maori estates rested with the Native Land Court. At one stage when jurisdiction rested with the Native Land Court, a definition of “children” was added by amendment to the Native Land Act 1909. This definition of the term “children” included natural children and the term “grandchildren” included the natural children of a son or daughter, whether or not such son or daughter is or was a natural child. At a later date, the definition of “children” was changed and the Maori Affairs Act 1953 did not include such a definition. In my view, the history of the legislation is equivocal and, if anything, tells against Mr Watson’s submissions. Each time the category of claimants has been extended, it was by legislation. If whangai is not included in the definition of “children of the deceased” and it is appropriate to include them in that category, it is a matter for the Legislature.

[18] A further submission on behalf of the plaintiff was that “child” is defined in other family law statutes which have a similar “maintenance and support” purpose as does the Act. The Matrimonial Properly Act 1976, before its recent amendment, the Property (Relationships) Act 1976, and the Family Proceedings Act 1980 all have definitions which include in the definition of “child” for certain purposes a child who is a member of the family or of the marriage, whether or not the child was a child of the husband or wife. These statutory provisions do not, in my view, assist. In the various statutory provisions referred to, the child would not be a member of the family or of the marriage if it were not for the express statutory provision in the particular Act. These statutory provisions suggest that if the meaning of “children of the deceased” in s 3 of the Act is to be extended, it should be extended by statutory amendment.

[19] There are cases where the Court has accepted that a testator has a moral duty to children adopted according to tikanga Maori. The status of a claimant under the Act is, however, a different status from that of a person to whom a moral duty is owed. There can be no doubt that in many cases a moral duty is owed to a whangai, particularly of the tamaiti awhi category. However, there are often other persons who are not claimants under the Act to whom a testator owes a moral duty. The cases do not assist the plaintiff’s contention and in some cases, detract from it. In Re Stubbing [1990] 1 NZLR 428, it was held that a claimant who had made out a case for relief under the Act cannot have that claim overridden by competing claims based on custom. Thus, although there was a moral duty established by custom, it did not override the claim under the Act. There are obiter statements in Re Green (deceased) [1995] NZFLR 330 which do not support the plaintiff. In Re Ham [1990] NZCA 32; (1990) 6 FRNZ 158, the moral duty to persons who may have been whangai was also considered. However, the claimants were children of the deceased and the whangai were not claimants. The Court always considers the moral duty to beneficiaries under the will whether they be claimants or not. In many cases, there will clearly be a strong moral duty in favour of whangai but this does not elevate them, in my view, to claimants under the Act. The cases which have accepted that there is a moral duty of a testator to whangai do not elevate whangai to the status of claimants under s 3 of the Act. In some of those cases there have been clear statements that the moral duty does not take priority over the interests of a claimant who comes within one of the categories in s 3 of the Act.

[20] Mr Watson also sought support from R v P [1991] 2 NZLR 116. In that case the issue was whether a child, who was not the natural child of the deceased but had been living in her home, came within the term “any child of hers” for the purposes of s 178 of the Crimes Act 1961 (the infanticide offence). Heron J held that the defence given to a woman in the circumstances should not be confined only to the killing of her natural children but to all children who can, in fact and law and common sense, be said to be hers. Section 5(j) of the Acts Interpretation Act 1924 required a fair, large and liberal interpretation as will best ensure the attainment of the object of the Act. It was determined there could be little offence to the language in considering that the child in the circumstances was a child of the accused. I accept there is a certain similarity between the finding in that case and what the plaintiff seeks in this case. However, the analogy is not determinative and R v P can be distinguished on the basis that the accused was facing a serious charge and it would have, in that case, been unfair in the circumstances of it to have not given to her a defence which would be available to a mother of a natural child in similar circumstances. I do not see it as a general principle which can be applied, particularly in the case of whangai where there are so many variations of the relationships which exist.

[21] Finally, in support of the submission that “children of the deceased” included whangai, reliance was placed on the Treaty of Waitangi, the New Zealand Bill of Rights Act 1990, and the International Conventions on the Rights of the Child. None of these instruments, in my view, require this Court to interpret s 3 in the manner contended by the plaintiff. Accepting the case law cited by Mr Watson in respect of the Treaty of Waitangi, and that one of the key principles of the Treaty is the active protection of Maori interests and taonga, does not inevitably lead to the conclusion suggested by the plaintiff. The Act is a specific piece of legislation giving certain specified relatives claims against the estate of a deceased. The general partnership concepts of the Treaty do not, in my view, extent to the circumstances of this case to require a term in an Act to be given an extended meaning which its natural and ordinary meaning does not give. Section 6 of the Bill of Rights does require this Court to give preference to a meaning that is consistent with the rights and freedoms contained in the Bill of Rights. It was submitted that ss 19 and 20 of the Bill of Rights were both relevant. Section 19 provides that a person shall not be discriminated against on the basis of race. Maori has not been discriminated against in that the Adoption Act 1955 allows whangai to be claimants if they are adopted. Not all whangai would be eligible for adoption under the provisions of that Act. Further, the provisions of the Adoption Act itself are, in my view, quite clear and under s 4 of the Bill of Rights, cannot be overruled by giving an extended and non-natural meaning to “children of the deceased” in the Act. Section 20 of the Bill of Rights which protects the rights of minorities does not extend to a case where testamentary freedom has been specifically limited by the provisions of the Act. Maori have the right to leave their property to whom they wish subject to the restrictions placed on them by the Act. Finally, the International Convention on the Rights of the Child does not assist. It is necessary for this Court to interpret enactments so as not to be inconsistent with rules of international law or international instruments unless the statutory language is clear and unambiguous see Tavita v Minister of Immigration [1994] 2 NZLR 257 (CA). The articles in the Convention upon which Mr Watson relies do not, in my view, require this Court to interpret the term “children of the deceased” in the manner contended for by him. Further, if I am wrong in this respect, the statutory language in s 3 of the Act is clear and unambiguous.

[22] For the reasons given, I am of the view that the correct interpretation of “children of the deceased” does not include whangai unless the whangai have also been adopted under the provisions of the Adoption Act. If I am wrong in this basic conclusion, the matter is put beyond doubt, in my view, by the provisions of the Adoption Act 1955.

The Adoption Act

[23] There are two sections in the Adoption Act 1955 which are relevant, namely, ss 16(2) and 19(1) which state:

“16(2) Upon an adoption order being made, the following paragraphs of this subsection shall have effect for all purposes, whether civil, criminal, or otherwise, but subject to the provisions of any enactment which distinguishes in any way between adopted children and children other than adopted children, namely:

(a) The adopted child shall be deemed to become the child of the adoptive parent, and the adoptive parent shall be deemed to become the parent of the child, as if the child had been born to that parent in lawful wedlock:

. . .

(b) The adopted child shall be deemed to cease to be the child of his existing parents (whether his natural parents or his adoptive parents under any previous adoption), and the existing parents of the adopted child shall be deemed to cease to be his parents, and any existing adoption order in respect of the child shall be deemed to be discharged under section 20 of this Act: . . .

19(1) No person shall hereafter be capable or be deemed at any time since the commencement of the Native Land Act 1909 to have been capable of adopting any child in accordance with Maori custom, and, except as provided in subsection (2) of this section, no adoption in accordance with Maori custom shall be of any force or effect, whether in respect of intestate succession to Maori land or otherwise.” (emphasis added)

[24] Section 16(2) of the Adoption Act deems an adopted child to be a child of the adoptive parent and, as such, is clearly a claimant under s 3 of the Act. Further, that child ceases to be a child of his existing parents and could therefore not bring a claim under the Act against his natural parents or his previous adoptive parents. If a whangai is a child for the purposes of s 3 of the Act, that whangai would appear to have an advantage over an adopted child as the whangai would presumably be able to claim not only against the estate of his matua whangai, but also against the estate of his natural parents. While I accept that under tikanga, this may not be an acceptable course of action, there would appear to be no legal prohibition preventing a whangai from claiming against four parents’ estates, if a whangai is a claimant under s 3 of the Act.

[25] Mr Watson accepted that he needed to confront s 19(1) of the Adoption Act. Unless the words “or otherwise” can be limited, the section appears to state that an adoption in accordance with Maori custom has no legal force or effect. If that is the correct interpretation, then a whangai is not a child for the purposes of the Act.

[26] It was submitted on behalf of the plaintiff that s 19 does not preclude the entitlement of whangai to claim under the Act because:

(a) There is nothing in the Act which requires the Court to apply s 19 of the Adoption Act;

(b) The purposes of the Adoption Act and the legislative history of s 19 is entirely distinct from that of the family protection legislation;

(c) The phrase “or otherwise” in s 19 must be read in light of the preceding words referring to “intestate succession” and the Court can confine the scope of “or otherwise” accordingly. This is an ejusdem generis argument;

(d) Despite the presence of s 19, Courts have customarily recognised Maori customary adoption as having a force and effect;

(e) Recent developments in the Law Commission and reviews of adoption legislation point to an increasing awareness of the importance of Maori custom in terms of adoption;

(f) The court is required to interpret s 19 in a manner consistent with the human rights instruments already referred to.

[27] The comments already made on the human rights instruments apply equally to this submission. There does not need to be any provision in the Act referring to s 19 of the Adoption Act if the terms of s 19 have universal application. While the Adoption Act is entirely distinct from the Act, that is not a reason for restricting the operation of s 19 if it does have wide application. The particular submissions which require further consideration are those relating to the recent developments in the Law Commission, the Court’s recognition of Maori customary adoption, the legislative history of s 19 and the ejusdem generis principle.

[28] Before considering the remaining submissions made by Mr Watson, it is relevant to note that under s 108(2) of the Te Ture Whenua Maori Act 1993, a whangai can take a beneficial interest in Maori freehold land under the will of the testator. Under s 115 of the same Act, the Maori Land Court may make provisions for a whangai when making orders in respect of Maori freehold land, even where the testator’s will does not make such a provision. Whangai do not have an automatic right of succession to Maori freehold land and are treated differently to children of the deceased.

[29] The Law Commission in its report No 65 Adoption and Its Alternatives noted at para 50:

“Prior to 1909, Maori customary adoption practices were recognised by the legal system in their own right. After the introduction of the Native Land Act 1909, Maori customary adoptions ceased to have legal effect, unless they had already been registered in the Native Land Court. After 1909, Maori who wished to adopt had to do so in accordance with the provisions of the Native Land Act 1909. Statutorily defined legal consequences of adoption flowed from the making of the order. Customary adoption in the traditional sense no longer had legal effect. Section 19(1) of the Adoption Act 1955 reiterates that no customary adoption made after the introduction of the Native Land Act 1909 will have any legal effect.”

The same report gives a detailed explanation of the historical legal recognition of Maori customary adoption practices. It does not, however, make a recommendation that s 19(1) of the Adoption Act be amended and clearly the Commission was of the view that Maori customary adoption does not have any legal effect. The recent developments in the Law Commission do not assist the plaintiff.

[30] Mr Watson referred to several cases which he said supported the proposition that the prohibition on customary adoptions was in fact solely related to objectives of achieving certainty in Maori succession laws and did not reflect an intention to eradicate all recognition of Maori customary adoption. He referred in particular to Piripi v Dix [1918] NZLR 691 and Whittaker v Maori Land Court [1997] NZFLR 707. Whittaker which also referred to Piripi noted the legislative history of the rights of Maori adopted by custom. The forbearer of s 19(1) of the Adoption Act was s 161(1) of the Native Land Act 1909 which read:

“161.(1)No Maori shall after the commencement of this Act, be capable of adopting a child in accordance with Maori custom, and, save as hereinafter in this section provided, no adoption in accordance with Maori custom, whether made before or after the commencement of this Act, shall be of any force or effect, whether in respect of intestate succession to Maori land or otherwise.” (emphasis added)

[31] The Court of Appeal in Whittaker determined that s 161 meant that no customary adoption made before or after the commencement of the Act was of any force or effect unless registered. At issue in that case was whether a niece adopted in accordance with Maori custom was lawfully adopted for the purposes of succession of the testator’s estate at the time of her death. Thomas J in giving the judgment of the Court, when referring to the words “or otherwise” said at p 710:

“We see no reason to limit the meaning of those words, and accordingly a customary adoption would be of no effect for any purpose, including intestate succession.”

Mr Watson submitted that Whittaker does not have universal application and that s 161(1) was enacted for the objective of achieving certainty in Maori succession laws. While the statement by Thomas J may have been obiter, it left no doubt as to the Court’s view on the meaning of “or otherwise” in s 19 of the Adoption Act.

[32] Finally, Mr Watson sought to read down the words “or otherwise” in s 19 by applying the ejusdem generis rule. It was his submission that the words should be read in light of the preceding words referring to “intestate succession” and the term should be restricted accordingly. The ejusdem generis rule provides that if specific words in a list are of the same class, the general word following them is construed as also being limited to that class. He sought to overcome the submission that there was no class preceding “or otherwise” by referring to L Marks v L Marks [1931] NZLR 756, where in a tax case, the Court was not prepared to construe the words “or otherwise howsoever” as being applied ejusdem generis but noted that if the words had been “or otherwise”, the rule might have applied.

[33] Section 19(1), like its counterpart s 161(1) of the Native Land Act 1909, is not preceded by a class. It is preceded by “intestate succession to Maori land.” It applies in one instance and not to a class of instances. “Otherwise” carries an underlying meaning of “differently” or “by other means.” The meaning of “otherwise” makes it difficult to apply the ejusdem generis rule when there is only one previous circumstance referred to and not a class of circumstances. While accepting that in its origin in the Native Land Act, the clause was in legislation dealing with Maori land succession, the Court of Appeal in Whittaker did not believe that it was restricted to intestate succession. Construing s 19 in the context of the Adoption Act and giving the words “or otherwise” their normal and natural meaning, I am of the view that the ejusdem generis rule does not restrict the application of s 19(1). It is my view that because of this statutory provision, a whangai cannot be a “child of the deceased” for the purposes of s 3 of the Act.

Conclusion

[34] For the reasons given, the answer to the question of whether a whangai is a child within the meaning of s 3 of the Act, so as to be entitled to make a claim under the Act for provision from the estate of the customary parents of a whangai, must be answered No. The class of claimants in s 3(1)(b) of the Act, namely, “children of the deceased” does not include whangai.

[35] The issue of whether “children of the deceased” should include whangai, and if so what categories of whangai, is one for the consideration of Parliament and not for this Court.

Costs

[36] As I did not hear submissions on costs they are reserved and if the parties are unable to agree, counsel may file memoranda.