Keelan v Peach Flashcards
What was the Question of law in Keelan v Peach
Does a whangai child fall under s 3 of the Family Protection Act, and is therefore entitled to claim under it?
Facts of Keelan v Peach
Hamana adopted Sam as a whangai, and then had a biological child (Poi), Poi then adopted a son, who wanted to lease out the farm. The case was brought by Sam, as he believed that this was not the wishes of Hamana and his whanau. This issue is whether or not Sam can claim under the Family Protection Act as a whangai.
Interpretative tools used by Patterson J (summarised)
Expert advice/tikanga, ordinary meaning, statutory context, long title/purpose, legislative history, other statutes’ definitions of ‘child’, case law, international law, NZBORA, Treaty of Waitangi, Golden Approach, extrinsic aids (Law Commission Report)
Ordinary meaning
Taking firstly an ordinary approach to the Family Protection Act, Paterson J looks at the phrase ‘children of the deceased’ in light of purpose and context. He firstly states that the word ‘children’ has not been defined by the Act. However in the absence of this it should be given an ordinary interpretation of natural born children based on a dictionary meaning of ‘born or begotten’. Furthermore he argues that the word child is qualified by ‘of the deceased’ and therefore this implies that the child must have been naturally fathered by the deceased. This is supported by the context of s 3(1)(e) which uses ‘children of a marriage” being defined in s 2 as ‘any child whose parents marry consequent to birth.”
Purposive approach
A purposive approach is also taken by Paterson J. He states that a whangai child could have rights to claim based on the scheme and long title of the Act which states support for maintenance and claims against the estates of the deceased. On balance however he points out that s 3 does not include all claimants who may have moral claims and secondly in regards to whangai adoptions there is evidence that not all these children may have claims. According to the plaintiff only those that are tamaiti awhi (blood connections) have that right. Patterson J therefore states that in order to include whangai it would be necessary for the court and Parliament to consider the relationship in detail.
Legislative History
Legislative history Paterson J acknowledges that there appears to be a trend of increasing the category of claimants. The Testators Family Maintenance Act which was once restricted claimants to only legitimate children has been widened to now include grandchildren and adopted children. Under this reasoning it was submitted that whangai children could also be included. However more persuasive he states is that each time the category of claimants has increased it has been extended by Parliament and therefore if whangai are not included and should be this is a matter for Parliaments amendment.
Case law
Case law is also looked at in which he states there are cases such as R v P in which non-natural children have been considered a ‘child of hers’, similar to a ‘child of the deceased’. He accepts that there are similarities here but overall he distinguishes the cases on the basis that in R v P the accused was facing a serious charge and it would have been unfair not to grant her the same protection as a mother of a natural child. Thus he concludes that the general principle of this case cannot be applied particularly considering there is so much variation in whangai relationships.
Reference to ToW and NZBORA etc
Finally in this case the TOW and other Acts were submitted to be persuasive. Firstly looking at the TOW Paterson J states that despite the principles of the Treaty requiring active protection of Maori the general relationship principles cannot be applied here. Secondly s 19 of the NZBORA was submitted on the argument that not including whangai is racial discrimination. This is quickly rejected as Maori still have the same rights under the Adoption Act to legally adopt from whangai. The international Conventions on the Rights of the Child is also argued on the basis that ‘child’ must be interpreted in relation to international rights. Paterson J does not consider this persuasive enough however to widen the words ‘children of the deceased’ and the Adoption Act is most deciding on this matter.
Adoption Act
Under the Adoption Act Paterson J looks to s 16(2)(b) which prohibits an adoptive child claiming against two sets of parents. He points out that it may be possible if whangai children were included for them to do this, giving an unfair advantage that could not have been intended by parliament. Section 19(1) also importantly holds that no Maori customary adoption has any legal force regarding ‘interstate succession of land or otherwise’. This was upheld in the case of Whitaker v Maori Land Court which ruled that there is no reason to limit of take these words in any other form. Also despite the submission of Ejusdem generis that the words ‘or otherwise’ create a class of succession by ‘other means’ Paterson J does not feel that this Act restricts the application of s 19(1) and therefore whangai children are not to be included.
Paterson’s basic principle:
“words are to be given their natural meaning as they appear in context and taking into account their purpose”
Decision by Patterson J in Keelan v Peach
No, a whangai child cannot claim under the Family Protection Act, as it would lead to absurdities where whangai children could make a claim against their natural and whangai parents’ estate.
If this law is to change it should be up to Parliament.
Thoughts????
