Ipsofactoj.com: International Cases  Part 4 Case 11 [NZCA]
COURT OF APPEAL, NEW ZEALAND
- vs -
18 NOVEMBER 2002
(delivered the judgment of the court)
THE ISSUE AND THE HIGH COURT JUDGMENT
In the High Court, Paterson J held that a whangai (a child adopted according to Maori custom) is not a "child" within the meaning of s 3 of the 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 (Keelan v Peach  NZFLR 481). He made that ruling in answer to a question stated for determination before trial. The executor of the whangai’s estate appeals against the ruling.
In his judgment, Paterson J set out the facts and summarised the submissions. Interpretation of a statute, he said, requires the words used to be read in context with a view to giving effect to the purpose of the legislation. The natural and ordinary meaning of "the children of the deceased" is that a child must be an offspring of the deceased; the deceased must either have fathered or given birth to the child. Section 3(1)(e)(u) relating to a "child of a marriage", taken with its definition, also supports the contextual implication that the deceased has either begotten or borne the child. An argument based on the maintenance and support purpose of the Act does not support the whangai’s claim: the list of eligible claimants does not include all who may have moral claim on the estate of the deceased; and the evidence before the Court from a Maori elder suggests that not all whangai have claim on the deceased estate – only one category, tamaiti awhi, may have that claim. Nor does the legislative history or the use of "child" in other family law statutes help. Cases recognising the moral duty owed to beneficiaries who were not claimants do not help determine whether those persons could also claim. A case decided under the infanticide provisions of the Crimes Act in relation to the killing of a five year old child who although not her natural child was living with the accused who had been granted custody and had guardianship (R v P  2 NZLR 116) is to be distinguished. Arguments by reference to the Treaty of Waitangi, the New Zealand Bill of Rights Act 1990 and the Convention on the Rights of the Child also do not assist. And s 19 of the Adoption Act 1955 in any event denies force or effect to an adoption in accordance with Maori custom.
Mr. Watson, in careful and comprehensive submissions made on behalf of the appellant, contends,
First, that whangai come within many of the accepted natural and ordinary meanings of "children" of the deceased.
Secondly, the eligibility of whangai is consistent with the purpose of maintenance and support in the Act, the doctrine of moral duty and the antecedents of s 3 which provide for claims by children other than natural children.
Thirdly, the Judge’s interpretation of s 19 of the Adoption Act is challenged.
Finally, the second and third contentions are supported by interpretative rules against the extinguishment of customary rights and in favour of the interpretation of legislation consistently with the Treaty of Waitangi, international conventions and the Bill of Rights.
Mr. Sharp for the residuary beneficiary and Mr. Upton QC for the trustees (playing an appropriately subordinate role) support the reasoning in the judgment and respond to the appellant’s arguments.
The deceased estate is that of Hamana Walker who in about 1929 customarily adopted (whangai) Sam Hamana Walker Keelan (Sam) when Sam was a baby. When Sam was about 15, Hamana had a natural son, Hirini Poihakena Walker. Poihakena adopted a son, Jason. Hamana died in 1970 leaving a will dated 15 October 1963 and a codicil dated 17 November 1964. The will and codicil granted the net income from the estate to Poihakena during his lifetime with the remainder to those of Poihakena’s children who reached the age of 21. They made no provision for Sam to whom however Hamana had given part of the land. Sam also bought an adjoining block but the total holding was considered to be uneconomical, being valued, it is said, at $17,000.
Sam died in 1986 and Poihakena in 2000. The present proceedings are brought by Ngawini Keelan, the daughter of Sam, and the executor of his estate. She testified about her father working throughout most of his growing years side by side with his father in developing the estate. According to her father, he was doing the job of a fully-grown man by the time he was ten. He also had to learn to look after himself. He married when he was 19 and continued to live off and on with Hamana, working the farm until his late thirties. He left the farm in the early 1960s following a falling out with Hamana. He then dedicated himself to the hard task of creating a livelihood for himself and his family.
Since Poihakena’s death in 2000, the daughter continues,
the situation has changed. The proceeds of Hamana Walker estate are about to be finally distributed and I understand that Jason has no interest in farming and wishes to liquidate the assets and lease the land. This is simply not acceptable to my father’s whanau, and is contrary to the whole way the land has been viewed (by my father and his brother Poihakena) which has been to guard against alienation.
I have initiated this action to ensure that our father’s interests as a whangai of Hamana Walker and the considerable contributions which he made during his lifetime to building and developing the Waipiro A45 estate be considered before any such action is taken.
The evidence before the Court also included valuable information about customary adoptions, both in the region, the East Coast, with which this case is concerned, through an affidavit of Sue Te Huinga Wiremu Nikora, an elder of Gisborne and an aunt of the plaintiff, and more generally from Dame Joan Metge, a social anthropologist and author of New Growth from Old – The Whanau in the Modern World (1995). As will appear, the evidence has rather limited significance for the answer to the question put to the Court but it may be relevant to ways in which the various specific grievances are to be addressed (a matter touched on in comments from the bench) and more generally to the reform of aspects of family law.
IS A WHANGAI A CHILD OF THE CUSTOMARY PARENT?
We turn to the particular question stated for the decision of the Court, indicated in the first paragraph of this judgment. It is the only matter before us.
The Family Protection Act 1955 lists those who are entitled to claim under it for provision out of the estate of any deceased person:
Persons entitled to claim under Act
We set out the provision as it was in 1970 when Hamana died. It has been amended since, with effect from 1 February 2002. Those amendments are not directly in point but they are of general relevance as appears later. The particular question before us is whether whangai are "children of the deceased" under s 3(1)(b).
ORDINARY AND NATURAL MEANINGS
As urged by Mr. Watson, we begin with ordinary and natural meanings of "child". As many dictionaries show, whangai do come within some definitions of child. In that sense an ordinary or natural meaning of the word can be said to be satisfied, but that is not enough to determine the meaning of "children of the deceased" in s 3(1). For instance, while the Chambers Concise Dictionary (1989) includes within its entry for child, "one standing in a relationship of adoption", that part of the entry continues "or origin (to a person, place etc): disciple". Consider "the children of Israel" Ex iii 14, "the children of the vanquished" (Macaulay), child of nature and child of the Renaissance, to give just some of the references in the Oxford English Dictionary (2d ed). That dictionary provides as the first meaning under the heading "As correlative to parent" the offspring, male or female, of human parents .... That is to say, the main natural and ordinary meaning of child (of parents) appears to be against the appellant. But is she helped by the purpose or the context of the legislation?
Part of the context, says Mr. Watson, is that the relationship in the context of this case between child and deceased has to be put in this way: does the phrase "child of B" lead only to the natural and ordinary conclusion that the child was "begotten or borne by B". The evidence before the Court, he says, answers "No" at the level of the actual whanau and the more general level of wider Maori custom. But, as Paterson J stated, that evidence presents problems even in its own terms. Whangai relationships differ, with some being more analogous to temporary fostering and not involving any continuing obligation of maintenance and support. Dame Joan Metge’s affidavit and writings show how these relationships continue to develop.
More significant than that difficulty is that the expression "children of the deceased" appears in a statute and, to repeat, has to be given a meaning in that context and by reference to the purpose of the statute – and in particular its scheme.
PARLIAMENT AMENDS THE LIST OF THOSE ELIGIBLE
The history of the legislation assists in that process of finding meaning. We begin in 1900. The Testator’s Family Maintenance Act 1900, "An Act to insure Provision for Testators’ Families", gave the Supreme Court and in the case of deceased Maori the Native Land Court power in its discretion "[s]hould any person die, leaving a will, and without making therein adequate provision for the proper maintenance and support of his or her wife, husband or children .... [to] order that such provision as to the said Court shall seem just .... be made out of the estate ....". (For an earlier power conferred on the Native Land Court, which may have influenced the formulation of the 1900 Act, see the Native Land Court Act 1894 s 46.) While the title and short title refer to family maintenance Parliament limited the potential claimants at that time to the spouse and the children of the deceased. From the outset, the legislature stated with precision those who were eligible to claim, while, by contrast, it gave the court broad power to make provision out of the estate to those persons. The court’s assessment of moral duty did not then extend and, as we shall see, has not subsequently extended to its determining on some equivalent broad basis of moral duty the distinct and prior question of who is eligible to apply, for instance as "a member of the family of the deceased". It was only when it was established that particular claimants were so eligible that the court’s broad power to make provision arose. That distinction is a critical part of the scheme of the Act.
In 1900 there can be no real doubt that "children of the deceased" in a statute or instrument for the distribution of property on death would be understood as issue of the deceased and as not including illegitimate children. That was simply assumed to be the position in early cases, notably by Stout CJ who had of course had a large hand in the 1890s in promoting the legislation (e.g. E v E (1915) 34 NZLR 785, 794 and In Re Herd  GLR 118; and see Rosalind Atherton "New Zealand’s Testator’s Family Maintenance Act of 1900 – the Stouts, the Women’s Movement and Political Compromise" (1990) 7 Otago L Rev 202, 207-213).
The exclusion of illegitimate children from the scope of the term "child" in legislation of that time also appears from their express mention or addition in statutes such as the Destitute Persons Act 1894 and the amendment made to the Deaths by Accident Act 1880 by s 6 of the Legitimation Act 1894.
It was probably also understood in 1900 that children adopted under the Adoption of Children Act 1895 were eligible to apply in respect of the estates of their adopting parents given that ss 7 and 8 of that Act said that an adopted child was for all purposes, civil and criminal, to be deemed in law to be the child born in lawful wedlock of the adopting parent, and that that parent was deemed in law to be the parent of the child as if the child had been born to the parent in lawful wedlock. There would as well have been no real doubt that children legitimated by the subsequent marriage of their parents would also have been eligible in terms of the Legitimation Act 1894 under s 2 of which the children were deemed on their registration under the Act to have been legitimated by such marriage from birth and were entitled to all the rights of a child born in wedlock. (See also e.g. the annotation to s 33 of the Family Protection Act 1908 in Vol 3 The Public Acts of New Zealand 1908-1931 (1932) 301.)
The distinction between eligibility and the ground for making provision in the scheme of the Act appears as well from the series of amendments, mainly, but not only, by way of addition, over the last 100 years to the list of those eligible to apply while by contrast Parliament has left untouched the broad ground for making provision.
The first amendment related only to Maori estates and was effected by the Native Land Act 1909 which also removed Maori estates from the scope of the 1900 Act. The eligibility of spouses was altered from the 1900 position in two ways – only widows (and not widowers) could apply, and that category was broadened to include a Maori woman who had been married according to Maori custom before 31 March 1910 if her marriage was subsisting at the time of her husband’s death (ss141 and 140(5)). (The limiting date was later removed, e.g. Native Land Act 1931 s 177(5), and then fixed at 1 April 1952, Maori Purposes Act 1951 s 8(3)(a); see the general change relating to Maori marriage made in 1951 by s 8(1) of the 1951 Act to s 231 of the 1931 Act.) Orphan grandchildren were also added.
The next change, also to the native land legislation, made in 1929, was to say that "the term ‘children’ includes natural children, and the term ‘grandchildren’ includes the natural children of a son or daughter, whether or not such son or daughter is or was a natural child". While Mr. Watson argues that the implication of the amendment was that non biological children were already included in the term "children", the obvious purpose was to include illegitimate children of the deceased. We have already mentioned that they would not have been considered as included in the original term "children" in 1900. This obvious purpose is supported by the fact that the Maori Affairs Act 1953, in the provision parallel to the 1929 amendment, replaced the reference to "natural children" by "illegitimate children" (s119(5)).
That change – bringing illegitimate children within the list of eligible claimants – was made for non-Maori deceased estates seven years later in the Statutes Amendment Act 1936 s 26. In 1943 another new category was added – parents if there were no surviving spouse or children. Consistently with the 1936 amendment, a person was deemed to be the father or mother of the deceased notwithstanding that they were related only illegitimately (Statutes Amendment Act 1943 s 14).
In 1947 the term "children" in relation to the deceased person was deemed to include adopted children of the deceased person (Statutes Amendment Act 1947 s 15). Given the terms of the adoption legislation in force from 1900 (e.g. para  above) it is not clear what additional recognition that amendment could provide. It was not carried forward into the 1955 Act because, according to the explanatory note to the Bill, "the position is now covered generally by section 21 of the Infants Act 1908" as enacted in 1950.
The 1955 Act added stepchildren of the deceased who were living or were entitled to be maintained by the deceased immediately before his death. The Act as a whole was made applicable to Maori estates in 1967.
The Status of Children Act 1969 established the general proposition that children have the same status, in particular in relation to their parents (which can only mean their biological parents – see especially s 6), whether their parents were married at the time of the birth, subsequently or not at all. The Act accordingly removed the reference to "whether legitimate or illegitimate" and to comparable expressions.
The most recent change, effective from this year, is to include among eligible claimants a de facto partner who was living in a de facto relationship with the deceased at the date of death (Family Protection Amendment Act 2001).
That amendment makes two related points. It confirms the particular control that Parliament has exercised throughout a century in adapting the list of those eligible to apply under the 1955 Act. To repeat, that is a central aspect of the scheme of the Act. And, with the detailed amendments to the list made over the last century, it virtually compels the conclusion that there is no room for a court to read new content into any of the items in the list. The specificity of the list and of the items within it is to be contrasted with the phrase "members of the family" when included in legislation alone and without further elaboration. English courts in interpreting tenancy protection legislation using that phrase have recognised changing social attitudes and facts to include de facto and same sex partners, for instance in Brock v Wollams  2 KB 388 CA, Dyson Holdings Ltd v Fox  QB 503 CA and Fitzpatrick v Sterling Housing Association Ltd  1 AC 27.
The history of the legislation allows two other relevant conclusions: the initial meaning of "children of the deceased" is biological children so long as, in the language of the day, they were legitimate or had been legitimated by subsequent marriage, plus adopted children; but customary relationships, as with Maori customary marriage and de facto relationships generally, required express statutory inclusion.
MAORI CUSTOMARY ADOPTIONS IN THE STATUTE BOOK
Maori customary relationships formed by adoption have indeed for over a century been the subject of express legislation, but it is legislation which appears to stand squarely in the way of the appeal. Section 19 of the Adoption Act provides as follows:
Adoptions according to Maori custom not operative
Mr. Watson’s submissions give particular weight to the final phrase of s 19(1) – "or otherwise" – which he says limits the scope of that provision to succession (testate as well as intestate) to Maori land. An application under the Family Protection Act is not, he says, about succession to Maori land. It is about providing support by making provision out of the deceased estate. That reading, the submission continues, is supported as well by principles and presumptions of interpretation relating to customary rights and the Treaty of Waitangi, the Bill of Rights and international conventions. That argument, which has a wider potential application, is addressed later.
We consider in turn the particular terms of s 19, the immediate context of the Adoption Act and the history of the provision.
The first part of s 19(1) itself appears to present an impregnable barrier to this appeal. If it is not possible in law to adopt a child in accordance with Maori custom on what basis can such an adoption have any legal force and, in particular, change the status of the child? On that basis, the second part of s 19(1) is a consequence which could have gone without saying. Similarly, the final phrase – "whether in respect of interstate succession or otherwise" – can be seen as an unnecessary, cautionary addition. If the adoption has no "force or effect" what limit is there to that – except of course for that expressly made in subs (2), saving customary adoptions made before 31 March 1910. That express exception emphasises the otherwise absolute character of the barrier.
The clear denial of the effect of customary Maori adoptions in s 19 is emphasised by the immediate context of the provision. By contrast to that denial, ss 16 and 17 say that adoptions under the Act and certain foreign adoptions are operative and do change status or are recognised as changing status.
Section 19 of the 1955 Act can be traced back to 1909 and Part IX of the Native Land Act of that year. Section 161(1) and (2) of that Act are essentially to the same effect as s 19. They were carried forward into s 202(1) and (2) of the Native Land Act 1931 and s 80 of the Maori Affairs Act 1953 with some changes. That is to say, the bar on customary adoptions and the denial of legal force to them has existed, if with some qualifications, for the whole of the last century.
It did not follow that Maori adoptions were not possible. On the contrary, at the same time the 1909 Act denied force to customary adoptions, it conferred jurisdiction on the Native Land Court to make an order for the adoption of a child by a Native (ss162-167). Such an order had for all purposes the same force and effect as an order of adoption lawfully made under Part III of the Infants Act 1908, subject to the rules of Native custom as to interstate succession to native land (s168). And now s 18 of the Adoption Act 1955 completes the set in that part of the Act by enabling any person whether Maori or not to apply for the adoption of any child whether a Maori or not.
The wording of s 19 and its largely consistent history emphasise its general effect. But, says Mr. Watson, the words "or otherwise" should be limited in accordance with the eiusdem generis rule to testate succession in respect of Maori land. The genus created by the first half of the final phase is succession in respect of Maori land. What in effect counsel is saying is the final part of the subsection should read "shall be of no force or effect in respect of succession to Maori land". But it does not say that. That would be a substantial rewriting of the provision and would create a clash with the first part of the subsection: the subsection as a whole would then, on Mr. Watson’s argument, say that although no one is capable of adopting according to Maori custom a customary adoption would be effective in all respects except succession to Maori land. That is, it would be effective to change status with consequences for instance for obligations of support during life, guardianship, custody, marriage and succession to all other property. We scarcely need note in respect of such a proposition that s 19 and its predecessor have no detailed statement of the effects of customary adoptions like that in s 16 which also includes important limits (e.g. in respect of prohibited marriages) and its successors back to 1881 and related provisions like s 168 of the 1909 Act.
Subject to the issues arising from the submission about interpretative approaches, which we consider later, we can see no basis for accepting the appellant’s contentions about s 19 and for departing from this Court’s ruling to that effect in Whittaker v Maori Land Court  NZFLR 707.
THE PURPOSE OF THE 1955 ACT
Those interpretative approaches are also relevant to the submissions about the purpose of the 1955 Act. As Mr. Watson says, the 1955 Act is an Act relating to "claims for maintenance and support". He quotes Eichelbaum J as commenting that one reason for the legislation is that, where the means exist, the family should provide for such maintenance rather than the state (Re Stubbing  1 NZLR 428) and he recalls from the parliamentary debates that one of the factors that impelled the introduction of the 1900 Act was that while a husband could be compelled to maintain his wife and children while alive (under destitute persons legislation) it seemed odd that this maintenance was optional at death; the burden should not be thrown on the State (e.g. Mr. McNab, the mover of the Bill, Sir Robert Stout by then being Chief Justice, (1900) 111 NZPD 503-504). The case law has elaborated the purpose of "maintenance and support" by reference to the "moral duty" of the testator (e.g. Allardice v Allardice (1910) 29 NZLR 959, 973 and Re Z  2 NZLR 495, 506) and has established, in the words of Cooke J, that changing social attitudes must have their influence on the existence and extent of moral duties (Little v Angus  1 NZLR 126, 127).
Those authorities are however not concerned with the question of who is eligible to claim for provision. They are concerned with what provision may be made to those who are eligible within an item in the particular list. As we have emphasised in this judgment, Parliament from the outset has defined and redefined with precision the list of those who are eligible to claim while leaving the Court with broad power to make provision for them. The fact that in exercise of that power the Court recognises moral duties does not mean that it can by reference to such considerations rewrite the list. The legislation is sharply different from that in issue in the tenancy protection cases mentioned earlier. A similar point can be made about the infanticide case, R v P  2 NZLR 116, the offence in which is defined in terms of "any child of hers" (alone). The ruling made by the trial Judge in that case is also to be understood in its context: the accused was facing a serious charge (murder if it were not reduced to infanticide) and in the Judge’s view the child whom she had killed could in fact and law and commonsense have been said to be hers. Ultimately the explanation may lie in the Judge’s sense of mercy.
It follows that the broad purpose of the Act does not assist the appellant.
PRINCIPLES AND PRESUMPTIONS OF INTERPRETATION
As indicated in relation to the s 19 and purpose arguments, Mr. Watson invoked the principles and presumptions of interpretation that
the extinguishment of an aboriginal right requires clear and plain Parliamentary intention, and
legislation should if possible be interpreted consistently with the Treaty of Waitangi, international conventions and the Bill of Rights.
On the first, counsel submits that no clear and plain intention exists in this case to extinguish the rights in respect of Maori customary adoption for all purposes (his emphasis). But that is not the present case. The issue here is whether Maori customary adoption makes a whangai a child of the customary parent for the particular purpose of being eligible to apply under s 3 of the 1955 Act. A negative answer to that issue does not deny the relevance of the Maori customary adoption for other purposes under the 1955 Act. It may well be significant in the assessment of moral claims, particularly if the deceased names a whangai as a beneficiary in the will. The material before us does not begin to support a customary base for wider recognition which would influence the interpretation of the expression "children of the deceased" under the 1955 Act. In any event, the legislative position so far as status in respect of Maori customary adoptions are concerned has been clear beyond any doubt since 1909. It is also clear that the wording and history of the list of eligible claimants does not allow whangai to come within the scope of "children". The vagueness and limited extent of any customary right on the one side and that legislative clarity on the other also provide complete answers to the remaining arguments based on interpretive presumptions. Further, the argument relating to the Treaty does not establish that Maori customary adoption is guaranteed by the broad terms of article 2 in respect of matters such as claims under the 1900 and later Acts. That is also the case with the generally stated protections of the rights of minorities included in the Convention on the Rights of the Child and s 20 of the Bill of Rights.
While we do have considerable sympathy with the position in which the family of the whangai find themselves we have no doubt that Paterson J was correct in his ruling. Whangai are not "children of the deceased" within the meaning of s 3 of the Family Protection Act 1955. The appeal is accordingly dismissed.
There were no submissions on costs. Counsel may, if they wish, submit memoranda.
Keelan v Peach  NZFLR 481; R v P  2 NZLR 116; E v E (1915) 34 NZLR 785; In Re Herd  GLR 118; Brock v Wollams  2 KB 388 CA; Dyson Holdings Ltd v Fox  QB 503 CA; Fitzpatrick v Sterling Housing Association Ltd  1 AC 27; Whittaker v Maori Land Court  NZFLR 707; Re Stubbing  1 NZLR 428; Allardice v Allardice (1910) 29 NZLR 959; Re Z  2 NZLR 495; Little v Angus  1 NZLR 126
Family Protection Act 1955: s.3
Family Protection Amendment Act 2001
Maori Affairs Act 1953: s.119(5)
Statutes Amendment Act 1936: s.26
Statutes Amendment Act 1943: s.14
Status of Children Act 1969: s.6
Adoption Act 1955: s.18, s.19
Native Land Act 1909: s.161(1), (2)
Native Land Act 1931: s.202(1), (2)
Maori Affairs Act 1953: s.80
Convention on the Rights of the Child
Bill of Rights: s.20
Authors and other references
The Public Acts of New Zealand 1908-1931 (1932), vol.3
Dame Joan Metge, New Growth from Old – The Whanau in the Modern World (1995)
Chambers Concise Dictionary (1989)
Oxford English Dictionary (2d ed)
Rosalind Atherton, "New Zealand’s Testator’s Family Maintenance Act of 1900 – the Stouts, the Women’s Movement and Political Compromise" (1990) 7 Otago L Rev 202
Mr. McNab, the mover of the Bill, Sir Robert Stout [ Chief Justice] (1900) 111 NZPD 503
LH Watson for the Appellant (instructed by Duncan Cotterill, Wellington)
JO Upton QC for the Respondent Trustees (instructed by Nolans, Gisborne)
DJ Sharp for Residuary Beneficiary (instructed by Burnard Bull & Co, Gisborne)
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