A polyamorous throuple won the right to put all three of their names on their children’s birth certificates, but have been pulled back to court after the Attorney-General appealed the decision.

The Attorney-General’s crown counsel, Daniel Perkins, insisted the appeal wasn’t because of the family’s sexual orientation, but simply because it wasn’t possible to have more than two people listed in the system.

For more than two people to be listed, there would need to be “robust” parliamentary discussion and legislative change.

And while the family’s counsel, Amanda Taylor, agreed Government involvement is needed, she urged Justice Michael Robinson in the High Court at Hamilton to deal with her client’s case separately.

She said the Attorney-General’s actions were discriminatory and a breach of the Human Rights Act.

Reducing the argument to a numbers game, because three names couldn’t be accommodated, “undermines the very nature of this family as a whole” by the fact they were polyamorous.

The Attorney-General is appealing an earlier Family Court decision which granted the trio’s request.

That judge found that while the request was “unorthodox and awkward”, she said it was likely Parliament never turned its mind beyond two-parent families.

‘It simply can’t work’

But Perkins argued the District Court judge erred in her decision, and had to reach “right far back into 16th-century” case law.

“That indicates how much of a reach it was ... I think she acknowledged she was straining, and we say she strained too far,” Perkins said.

Perkins said there was international consistency used in registering information from Births, Deaths, and Marriages, and allowing this throuple an exemption simply couldn’t work.

“It’s one of the oldest registration systems in New Zealand.

“We say it’s evident of the centrality of this information to ... so many aspects of society.

“It’s important that the system is robust, accurate... and maintains public confidence and points away from bespoke, and without being disrespectful to the family, somewhat contrived expansions of that system to deal with the outlier circumstances of families such as this.”

The Attorney-General was flexible with regard to people’s sexuality or “social circumstances”; it had updated its marriage laws in 2004 to include Civil Unions, and people were now able to identify as another sex.

“We acknowledge that at some point in the future ... registration may provide for more than two parents for a child.”

It wasn’t something that was “well-suited” to judicial involvement, he said.

He said the appeal had nothing to do with their sexual orientation but rather “the number of parents sought to be registered”.

“It does not fit into any of the grounds under the Human Rights Act.”

The appeal also wasn’t anything personal against the family.

“All considered, we acknowledge there are three adults who are playing a very important parental role in relation to these two children.”

Justice Robinson also noted “the Family Court would be much less busy if all families were like this one”.

Perkins said, “three social parent families are a reality even beyond this family”.

However, granting this family an exemption would “have implications for others”, he said.

‘This is about how they live their lives’

Taylor questioned the Attorney-General’s stance that it wasn’t opposed to how her clients wished to live their lives.

“The substance of this entire matter is about how they are living their lives, so we can not then just park that to the side, and move on to strictly looking at a numbers issue ... or very narrow interpretations of the law.

“At the forefront of any argument has to be this family’s life, these children’s lives, a decision of this court will forever impact what they will be entitled to moving forward.”

Taylor said there would be blatant discrimination if the appeal is allowed.

“This is a family who have had children in the sanctity of their relationship.

“The mirror to that is a family who have had children in the sanctity of their relationship but are recognised by law by being named as parents.”

That in itself was discriminatory, she said, by only allowing two couple parents to be able to register themselves.

“The family’s right to have their whole family status recognised would be stopped by virtue of the fact that it does not fit within an outdated traditional concept of what family can mean.”

“It’s about each parent being legally recognised as the parent.”

She also took issue with Perkins’ use of the words “social parents”.

“This family are not social parents, they are all parents of these children.

“That would be the case if [mum] and [mum] were in a single relationship with each other... or de facto with [dad].

“It cannot be seen as you can be a legal parent to a child even if you are not biologically related, and that be supported by the Human Rights Act, but then stops when the numbers game becomes too much.”

‘Discriminatory against their right to be lesbian and bisexual’

She also argued it would be discriminatory on the grounds of sexual orientation.

“To deny them both being named as mothers on the birth certificates is to discriminate them against their exercise of right to be bisexual and concurrently have a heterosexual and homosexual relationship.

The question became why they could not be recognised in law as expressing both of their sexualities.

“To be able to say they’re not allowed to be both named as mothers on the birth certificates because they’ve expressed both sexualities in a concurrent relationship would be discriminatory.

She submitted that if Justice Robinson dismissed the appeal, the Attorney-General would just have to find a way to “deal with it”.

“The law is certainly vast enough to allow the courts to determine this decision."

Belinda Feek is an Open Justice reporter based in Waikato. She has worked at NZME for 10 years and has been a journalist for 21.