Ophoven & Berzina - [2025] FedCFamC1A 97

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ophoven & Berzina [2025] FedCFamC1A 97

Appeal from: Berzina & Ophoven [2024] FedCFamC2F 1472

Appeal number: NAA 308 of 2024

File number: SYC 3182 of 2019

Judgment of: ALDRIDGE, GILL & CHRISTIE JJ

Date of judgment: 28 May 2025

Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal from declaration made pursuant to s 69VA of the Family Law Act 1975 (Cth) that the respondent is a parent of the child – Where the appellant contends the declaration was erroneous as the respondent lacked a biological connection to the child – Discussion of the term “parent” – Consideration of Masson v Parsons (2019) 266 CLR 554 – Where a presumption of parentage arose from the respondent being named on the birth certificate – Where the presumption was not rebutted – Where the appellant placed the respondent’s parent status in issue – No error established in the making of a declaration of parentage – Adequacy of reasons – Where the reasons do not reveal the factual findings relied on for the order of equal shared parental responsibility – Where the reasons do not reveal the primary judge’s acceptance or rejection of evidence on coercive and controlling behaviour – Reasons inadequate – Appeal allowed – Matter remitted for rehearing.

Legislation:
Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CC, 60H, 60HB, 61B, 64C, 65C, 66D, 66M, 66N, 66X, 68R, 69C, 69P, 69Q, 69R, 69S, 69T, 69U, 69V, 69VA, 69W

Family Law Amendment Act 2000 (Cth)

Family Law Reform Act 1995 (Cth)

Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Regulations 1984 (Cth) reg 12CA

Explanatory Memorandum, Family Law Amendment Bill 1999 (Cth)

Status of Children Act 1996 (NSW) s 14

Cases cited:
Andrew and Delaine [2009] FamCAFC 182

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA P148

Bernieres & Dhopal (2017) FLC 93-793; [2017] FamCAFC 180

Carlton v Bissett (2013) 49 Fam LR 503; [2013] FamCA 143

Donnell v Dovey (2010) FLC 93-428; [2010] FamCAFC 15

Ellison v Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

G v H (1993) FLC 92-380; [1993] FamCA 39

G v H (1994) 181 CLR 387; [1994] HCA 48

Green-Wilson & Bishop [2014] FamCA 1031

Groth v Banks (2013) 49 Fam LR 510; [2013] FamCA 430

Gustz & Denniston [2019] FamCA 16

H v Minister for Immigration and Citizenship (2010) 188 FCR 393; [2010] FCAFC 119

Hall and Hall (1979) FLC 90-713; [1979] FamCA 73

Hamad & Hamad [2022] FedCFamC1F 664

Lamb v Shaw (2017) 57 Fam LR 543; [2017] FamCA 769

Masson vParsons (2019) 266 CLR 554; [2019] HCA 21

McK and K v O (2001) FLC 93-089; [2001] FamCA 990

Meyer and Dara [2020] FamCA 1043

Mizushima & Crocetti [2024] FedCFamC1F 113

Mizushima & Crocetti (No 3) [2024] FedCFamC1F 542

Re C (No 2) (1992) FLC 92-284

Reeves & Grinter [2017] FamCAFC 19

Re G (Children) [2006] 1 WLR 2305; [2006] UKHL 43

Re Mark: An application relating to parental responsibilities (2003) FLC 93-173; [2003] FamCA 822

[2000] FamCA 1280 (unreported)

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Tobinv Tobin (1999) FLC 92-848; [1999] FamCA 446

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Younas v Commonwealth (No 2) [2024] FCA 853

Zahawi & Rayne [2016] FamCAFC 90

Number of paragraphs: 140

Date of hearing: 3 March 2025

Place: Sydney

Counsel for the Appellant: Ms Murphy (direct brief)

Counsel for the Respondent: Mr Butters (direct brief)
ORDERS

NAA 308 of 2024
SYC 3182 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS OPHOVEN

Appellant

AND:
MR BERZINA

Respondent

ORDER MADE BY:

ALDRIDGE, GILL & CHRISTIE JJ

DATE OF ORDER:

28 MAY 2025

THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Orders 3, 5, 6, 7, 8, 9, 10, 11, 16, 19, 20, 21, 22, 23 and 24 of the orders of 23 October 2024 are set aside.
3.The matter is remitted to a judge of the Federal Circuit and Family Court of Australia (Division 2) other than the primary judge.
4.The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to this appeal.
5.The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to this appeal.
6.The Court grants to the appellant and the respondent a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of the costs incurred in relation to the rehearing of these proceedings.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ophoven & Berzina has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE & CHRISTIE JJ:

This appeal relates to the parentage of a child and to arrangements for her care and questions of parental decision-making responsibility.
BACKGROUND
The child the subject of the proceedings was born to the appellant in New South Wales following an invitro fertilisation (IVF) procedure undertaken overseas. There was no genetic connection between the child and either party. While the parties had been in a relationship for some years it was an agreed fact that the appellant and respondent were not in a de facto relationship at the time of the child’s conception. The parties commenced a de facto relationship immediately following the birth of the child. Both parties were named as parents of the child on the child’s birth certificate. The child was given the surname of the respondent.
The parties separated when the child was about two years and eleven months of age. Until that time the parties were each involved in the care of the child. After the parties’ separation there was a significant break in the time which the child spent with the respondent. At the time of trial, the child was spending regular frequent time with the respondent and referred to him as “dad” or “daddy”.
The hearing commenced in October 2022. Orders were made in October 2024. At the trial the appellant submitted that the primary judge would find the presumption of parentage which arises from the respondent having been named on the birth certificate was rebutted. The primary judge concluded that the respondent was a parent of the child and made a declaration to that effect. The status of the appellant as a parent was not in issue at the trial.
The primary judge found that it was in the best interests of the child that the appellant and respondent have equal shared parental responsibility for the child and that the child should live with the appellant and spend time with the respondent.
THE APPEAL
There are seven grounds of appeal which relate to errors of law, issues of weight and failure to give reasons. Each ground will be addressed in turn.
Ground 1: His Honour made an error of law in declaring that pursuant to s 69VA of the Family Law Act 1975 (Cth) the respondent was a parent of the child
The question of who may be regarded as a child’s legal parent is plainly an important one. As the High Court observed in G v H (1994) 181 CLR 387 (at 391 per Brennan and McHugh JJ):
We do not suggest that paternity is not a serious issue. It is serious because paternity carries with it both significant privileges and grave responsibilities, only some of which relate to monetary obligations. The attribution of paternity may be seen by a child’s mother to be no more than the means of procuring a maintenance order during the child’s infancy, but a finding that a particular man is the child’s father might well be of the greatest significance to the child in establishing his or her lifetime identity…
(Emphasis added)
There is no definition of “parent” in the Family Law Act 1975 (Cth) (“the Act”).
No assistance is obtained by s 4 of the Act which reads: “parent, when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child”.
In Pt VII of the Act which is headed “Children”, Div 12 is headed “Proceedings and jurisdiction”. Subdivision D is entitled “Presumptions of parentage”. Presumptions arise from different factual findings related to marriage (s 69P), cohabitation (s 69Q), registration of birth (s 69R), findings of courts (s 69S) and acknowledgements (s 69T).
Order 1 of the primary judge’s orders was a declaration of parentage expressed to be in reliance upon s 69VA of the Act, which is found in Subdivision E, and provides:
As well as deciding, after receiving evidence, the issue of the parentage of a child for the purposes of proceedings, the court may also issue a declaration of parentage that is conclusive evidence of parentage for the purposes of all laws of the Commonwealth.
Section 69V of the Act deals with evidence in matters where parentage is in issue and reads:
If the parentage of a child is a question in issue in proceedings under this Act, the court may make an order requiring any person to give such evidence as is material to the question.
The appellant submits that the “weight of authority” supports that s 69VA of the Act requires that there be a “biological nexus” before a declaration of parentage can be made. For the reasons which follow, we accept that the development of the law concerning legal parent status has focused on the establishment of biological connection as a necessary prerequisite to the making of a declaration, but this position warrants re-evaluation following the decision of the High Court in Masson v Parsons (2019) 266 CLR 554 (“Masson v Parsons”).
Section 69V itself does not mention biological connection between parent and child (in contrast to s 60H). Further, s 69W, which provides for parentage testing orders (which would provide evidence of parentage), includes at subsection (5), “This section does not affect the generality of section 69V”, which talks about evidence which is material to the dispute. These factors have caused us to review the authorities which appear to confine the operation of s 69VA to cases of “biological connection”.
Section 69V was included in the Act by way of the Family Law Reform Act 1995 (Cth) following referral of power by the states to the Commonwealth.
Section 69VA was included in the Act by way of the Family Law Amendment Act 2000 (Cth) following expressions of uncertainty by the Court (Re C (No 2) (1992) FLC 92-284 at 79,109 per Fogarty J and G v H (1993) FLC 92-380 at 79,942 per Strauss J) about whether the Act provided for the making of a declaration of parentage.
At the time of the passing of the 2000 amendment, the Explanatory Memorandum to the Family Law Amendment Bill 1999 (Cth) read:
244.Existing section 69V provides that if the parentage of a child is in issue in proceedings under the Act, the court may make an order requiring any person to give evidence in relation to the parentage of the child. On the basis of this evidence the court can make a decision about the parentage of the child for the purposes of the proceedings. However, such a finding will not determine the issue of parentage for the purposes of any other Commonwealth law.
245.Item 69 will insert section 69VA that will enable the court, in deciding the issue of parentage of the child, to declare that parentage for the purposes of all laws of the Commonwealth.
In effect, the Explanatory Memorandum was saying s 69V is concerned with evidence upon which the court might make a finding, s 69VA is concerned with the basis upon which the court might grant (declaratory) relief.
It has always been accepted that declaratory relief under s 69VA is not available unless a child’s parentage is an issue in the proceedings. For example, see Mullane J in McK and K v O (2001) FLC 93-089.
Understandably, between 1995 and the present a considerable number of the matters in which parentage has been an issue for determination by the court have involved children born as a consequence of artificial conception procedures, as is the position here.
For that reason, the case law has focused on a conception of parentage which is broader than is captured by the expression “biological progenitor”.
Section 60H (and its predecessors) and s 60HB provide guidance about the circumstances in which the court will recognise the child as a child of a parent or parents when artificial conception has occurred (per s 60H) or the child has been born in a surrogacy arrangement (per s 60HB).
It is well established that s 60H operates to expand rather than limit the category of people who may be regarded as a parent (Re Mark: An application relating to parental responsibilities (2003) FLC 93-173; [2000] FamCA 1280 (unreported)).
However, neither s 60H nor s 60HB apply unless the circumstances of the child’s birth fall within the terms of the respective section.
It is useful to consider the cases decided before the High Court decision in Masson v Parsons and those decided after to inform the conclusions about the central issue in this appeal.
Cases before Masson v Parsons
In Tobinv Tobin (1999) FLC 92-848 (“Tobin”) the Court was considering the meaning of the term “parent” in the context of a dispute concerning child support. The child the subject of the proceedings had lived with and was cared for by the parties but was not their biological child. A state order was made which gave the parties guardianship and custody of the child. When the parties separated, orders were made in the Family Court of Australia providing that the wife have custody and the husband have contact. The dispute arose when the wife sought financial support from the husband for the child and he sought that her application be dismissed on the basis that he was not a parent. The primary judge found that the husband was not a parent (but otherwise had obligations).
The Full Court rejected the submissions of the wife to the effect that the husband was a “parent” for the purposes of the Act and the Child Support (Assessment) Act 1989 (Cth), setting out the following dictionary definitions:
40.      The Oxford English Dictionary (2nd ed) defines “parent” as:
“1.      (a) A person who has begotten or borne a child; a father or mother.
(b) By extension: A progenitor, a forefather;
(c) In transitive form: A person who holds the position or exercises the functions of a parent; a protector, guardian; sometimes applied to a father, or mother-in-law.
2.        A relative, a kinsman or kinswoman;
3.        Any organism (animal or plant) considered in relation to its offspring;
4.In figurative use: That from which another thing springs or is derived; a source, cause, origin…”
And saying at [42]:
42.…in our view, the natural meaning of the word “parent” is the first definition given in both the Oxford and Macquarie dictionaries, and the definition “a person who has begotten or born a child”, from the Oxford English Dictionary (2nd ed vol 9), which was accepted by Gummow J (in a different context) in Hunt v Minister for Immigration and Ethnic Affairs (1993) 41 FCR 380, at 386.
And then at [44]–[45]:
44.There are several other areas of the Family Law Act which would make any broader interpretation of the word “parent” quite problematic. Section 60B speaks of the children having a right to know and be cared for by both their parents. It does not talk of the children having a right to know and be cared for by all of their parents. Section 60B(2) provides that the children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development. It recognises a clear delineation between a parent and a person significant to a child’s care, welfare and development.
45.Whilst the term may be capable of being used in different contexts to include broader categories than those of “father” or “mother”, in our view, the natural meaning of the word in the context in Part VII, Division 7 of a child is the biological mother or father of the child and not a person who stands in loco parentis.
(Emphasis in original)
In Donnell v Dovey (2010) FLC 93-428 an Indigenous child was being raised by his elder half-sister following the death of his mother. The father was seeking an order that the child live with him. The Full Court determined the matter on the basis that “parent” meant a biological or adoptive parent.
In Ellison v Karnchanit (2012) 48 Fam LR 33 (“Ellison v Karnchanit”), a first instance decision of Ryan J, the Court was hearing an application by parents who had engaged a surrogate mother in Thailand on a commercial basis. The children (twins) were biologically those of the husband and an unknown donor. In reliance upon the dicta in Tobin her Honour concluded:
[77] It is accepted that s 69VA is thus concerned with whether a declaration of parentage should be made in favour of a biological parent.
…
[80]In short, at appellate level there is disquiet about whether a declaration of parentage pursuant to s 69VA is a parenting order. In circumstances where no mention of declarations of this type is made in s 64(B), I am unable to conclude that reference in s 64B(2)(i) to “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child” is sufficient to render a declaration an “order”: s 64B(1)(a). Thus resolution of this issue will proceed [o]n the basis that a declaration pursuant to s 69VA is not a parenting order to be determined in accordance with Subdiv BA of Pt VII.
[81]None the less the children’s interests and welfare are important considerations in determining whether or not to make a declaration of parentage…
In Carlton v Bissett (2013) 49 Fam LR 503 (“Carlton v Bissett”), Ryan J again followed the approach to s 69VA established by Tobin:
[31]The word “parentage” i[n] s 69VA was considered in Tobin v Tobin (1999) 24 Fam LR 635; (1999) FLC 92-848; [1999] FamCA 446. The gravamen of that decision is that s 69VA is concerned with whether a declaration of parentage should be made in favour of a biological parent…
Since both Ellison v Karnchanit and Carlton v Bissett concerned surrogacy where the applicant was the biological father, her Honour made the declarations of parentage pursuant to s 69VA of the Act.
In Groth v Banks (2013) 49 Fam LR 510, a single instance decision of his Honour Cronin J, the Court was asked to determine whether a person who had not been in a relationship with the mother at the time of the artificial conception procedure, but who had provided genetic material to enable conception would be regarded as a parent at law.

His Honour observed at [14]:
The fact that a child has two parents who are her or his biological progenitors permeates the language of the Act. The whole Commonwealth statutory concept as outlined in the Pt VII of the Act is one in which biology is the determining factor unless specifically excluded by law…
His Honour said that because s 60H had no application to the facts of the case, nor did the state law, it was open for the Court to find that the biological father was a parent. He did not make a declaration because (biological) parentage was not in issue in the case.
Green-Wilson & Bishop [2014] FamCA 1031, a first instance decision of Johns J, involved international commercial surrogacy. The child was the biological child of the father and an anonymous egg donor. The couple sought a declaration of parentage of the child in respect of the biological father. Her Honour made a declaration pursuant to s 69VA.
In Bernieres & Dhopal (2017) FLC 93-793 (“Bernieres & Dhopal”), the Full Court was hearing an appeal involving a child who had been born by surrogacy. The child was biologically related to the husband in the case. The husband and wife both sought a declaration of parentage in respect of the child. In the event that the Court was not minded to make a declaration in respect of the wife pursuant to s 69VA, they sought a declaration in reliance upon s 67ZC which gives the Court power to make orders relating to the welfare of children. Because the case concerned surrogacy (unlike this case) the provisions of s 60HB and s 60H were relevant and provided the basis upon which questions of parentage would be resolved. The Court concluded at [63] that “s 69VA is not available here because s 60HB covers the field, and s 60H does not apply”. In that regard, the Full Court agreed that the primary judge was correct in declining to exercise power under s 69VA but not for the reason which the primary judge in that case had expressed, namely that s 69VA is limited to situations involving biological connection.
The appellant relied on this case as authority for the proposition that the respondent was not to be considered a parent at law. However, the Full Court said that because that case dealt with a surrogacy arrangement, then s 60HB applied and covered the field such that s 69VA was not available.
Their Honours said at [68]:
…regrettably his Honour did not address the more relevant question of whether s 69VA applies at all given the presence of s 60HB (and perhaps s 60H). Thus, although in our view his Honour was correct in refusing to make a declaration of parentage under s 69VA, he did so for reasons that need not have been expressed.
In Lamb v Shaw (2017) 57 Fam LR 543, a first instance decision of Tree J, his Honour was asked to make declarations that the biological parents of a child born to a surrogate in an altruistic arrangement were the legal parents of the child. The biological parents contended that parentage was in issue in the proceedings. His Honour, despite ordering parental responsibility in favour of the biological parents, did not make a s 69VA declaration for two reasons. Firstly at [112], Tree J cited the earlier decisions in Bernieres & Dhopal in reaching the conclusion that s 69VA did not exist to remedy any legislative gaps engendered by s 60HB. Secondly at [113], his Honour found that a s 69VA declaration was unavailable to the biological parents due to an absence of “any factual dispute as to genetic parentage of the child”.
In Gustz & Denniston [2019] FamCA 16, Gill J was asked to make a declaration of parentage in favour of a party to a domestic same-sex relationship who had consented to an artificial conception procedure whilst in a relationship with the birth mother. His Honour found that s 60H(1)(b)(ii) applied and accordingly the child was a child of the applicant. At [154] his Honour said:
The making of a declaration as to parentage is intimately connected to, and entwined with, the making of parenting Orders. This means that despite the unavailability of s 69VA, the power to make the declaration is available to the Court as an incident of the power to make parenting Orders, whether or not it may be considered to be a parenting Order.
It is plain that s 60HB is not relevant to this appeal. It is necessary to examine whether s 60H applies. Section 60H provides:
(1)      If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure while the woman was married to, or a de facto partner of, another person (the other intended parent); and
(b)       either:
(i)the woman and the other intended parent consented to the carrying out of the procedure, and any other person who provided genetic material used in the procedure consented to the use of the material in an artificial conception procedure; or
(ii)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman and of the other intended parent;
then, whether or not the child is biologically a child of the woman and of the other intended parent, for the purposes of this Act:
(c)the child is the child of the woman and of the other intended parent; and
(d)if a person other than the woman and the other intended parent provided genetic material—the child is not the child of that person.
(2)      If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of the woman;
then, whether or not the child is biologically a child of the woman, the child is her child for the purposes of this Act.
(3)      If:
(a)a child is born to a woman as a result of the carrying out of an artificial conception procedure; and
(b)under a prescribed law of the Commonwealth or of a State or Territory, the child is a child of a man;
then, whether or not the child is biologically a child of the man, the child is his child for the purposes of this Act.
(5)For the purposes of subsection (1), a person is to be presumed to have consented to an artificial conception procedure being carried out unless it is proved, on the balance of probabilities, that the person did not consent.
(6)      In this section:
this Act includes the applicable Rules of Court.
Both parties gave evidence about parentage in this case in a specific factual framework. The appellant and respondent had registered the birth of the child and in so doing indicated that they were the legal parents of the child.
Sections 60H(1) and 60HA(1) have no application because it is an agreed fact that the appellant and respondent were not married or in a de facto relationship when the child was born. Section 60H(2) is only relevant to the question of whether a child is the child of a woman. That section governs the appellant’s status. Prescribed laws under this subsection were, at the time of hearing, set out at reg 12CA of the Family Law Regulations 1984 (Cth). The child was born in New South Wales and so the prescribed law is s 14(3) of the Status of Children Act 1996 (NSW) which provides:
If a woman (whether married or unmarried) becomes pregnant by means of a fertilisation procedure using an ovum obtained from another woman, that other woman is presumed not to be the mother of any child born as a result of the pregnancy. This subsection does not affect the presumption arising under subsection (1A) (a).
Section 60H(3) deals with a situation where a child born of an artificial conception procedure is the child of a man “under a prescribed law of the Commonwealth or of a State or Territory”.
There are no laws which are prescribed for the purpose of s 60H(3) and accordingly s 60H would not be engaged in the circumstances of this case. Section 60H does not apply so as to confer legal status on the respondent, but nor does it operate to preclude him from being declared a parent.
In Masson v Parsons the High Court was asked to consider whether there was error in the decision of the Full Court which had held that the biological father of a child, born by artificial conception procedure to a woman who was neither married nor in a de facto relationship at the time of conception, was not a parent for the purpose of the Act. The Full Court reached that decision in reliance upon the conclusion that:
25…because the matter was one within federal jurisdiction, s 79 of the Judiciary Act picked up s 14 of the Status of Children Act and applied it as a law of the Commonwealth, and that, perforce of s 14 of the Status of Children Act as so picked up and applied, the appellant was to be irrebuttably presumed not to be the parent of the child.
At [26] the High court said:
…Although the Family Law Act contains no definition of “parent” as such, a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning. Here, there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a meaning other than its natural and ordinary meaning. To the contrary, s 4(1) provides that, when used in Pt VII, “parent”, “in relation to a child who has been adopted, means an adoptive parent of the child”. That implies that there is an accepted meaning of “parent” which, but for the express inclusion of an adoptive parent, would or might not extend to an adoptive parent.
(Footnote omitted)
And, further, having canvassed ss 61B, 69V, 69W, 60B(1) and 60H(1)(d) of the Act their Honours concluded:
27…it is implicit in each of the provisions that have been mentioned that the Family Law Act proceeds from the premise that the word “parent” refers to a parent within the ordinary meaning of that word except when and if an applicable provision of the Family Law Act otherwise provides.
So, it becomes central to the disposition of this appeal to consider whether the Act made specific provision such as would preclude the declaratory relief which the primary judge made.
The question of whether the High Court’s decision in Masson v Parsons requires us to consider anew the “orthodoxy” that s 69VA is concerned only with biology has not been squarely or comprehensively addressed.
There is a distinction to be drawn between recognition of the significance of a person acting in loco parentis to a child, from the perspective of the child’s psychological wellbeing and identity and the recognition of legal status as a “parent”.
Section 69VA is concerned with the recognition of legal status.
The High Court in Masson v Parsons referred to the decision Re G (Children) [2006] 1 WLR 2305 (“Re G”). At [32] of that decision, Baroness Hale of Richmond reflected on the distinction between parents recognised by the law and parents whose legal status is not recognised in law. A longer extract from those reasons is set out below:
32So what is the significance of the fact of parenthood? It is worthwhile picking apart what we mean by “natural parent” in this context. There is a difference between natural and legal parents. Thus, the father of a child born to unmarried parents was not legally a “parent” until the Family Law Reform Act 1987 but he was always a natural parent. The anonymous donor who donates his sperm or her egg under the terms of the Human Fertilisation and Embryology Act 1990 is the natural progenitor of the child but not his legal parent: see the 1990 Act, sections 27 and 28. The husband or unmarried partner of a mother who gives birth as a result of donor insemination in a licensed clinic in this country is for virtually all purposes a legal parent, but may not be any kind of natural parent: see the 1990 Act, section 28. To be the legal parent of a child gives a person legal standing to bring and defend proceedings about the child and makes the child a member of that person’s family, but it does not necessarily tell us much about the importance of that person to the child’s welfare.
33There are at least three ways in which a person may be or become a natural parent of a child, each of which may be a very significant factor in the child’s welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child. This can be of deep significance on many levels. For the parent, perhaps particularly for a father, the knowledge that this is “his” child can bring a very special sense of love for and commitment to that child which will be of great benefit to the child: see, for example, the psychiatric evidence in In re C (MA) (An Infant) [1966] 1 WLR 646. For the child, he reaps the benefit not only of that love and commitment, but also of knowing his own origins and lineage, which is an important component in finding an individual sense of self as one grows up. The knowledge of that genetic link may also be an important (although certainly not an essential) component in the love and commitment felt by the wider family, perhaps especially grandparents, from which the child has so much to gain.
34The second is gestational parenthood: the conceiving and bearing of the child. The mother who bears the child is legally the child’s mother, whereas the mother who provided the egg is not: the 1990 Act, section 27. While this may be partly for reasons of certainty and convenience, it also recognises a deeper truth: that the process of carrying a child and giving him birth (which may well be followed by breast-feeding for some months) brings with it, in the vast majority of cases, a very special relationship between mother and child, a relationship which is different from any other.
35The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child’s needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase “psychological parent” gained most currency from the influential work of Goldstein, Freud & Solnit, Beyond the Best Interests of the Child (1973), who defined it thus:
“A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child’s psychological needs for a parent, as well as the child’s physical needs. The psychological parent may be a biological, adoptive, foster or common law parent.”
36Of course, in the great majority of cases, the natural mother combines all three. She is the genetic, gestational and psychological parent. Her contribution to the welfare of the child is unique. The natural father combines genetic and psychological parenthood. His contribution is also unique. In these days when more parents share the tasks of child rearing and breadwinning, his contribution is often much closer to that of the mother than it used to be; but there are still families which divide their tasks on more traditional lines, in which case his contribution will be different and its importance will often increase with the age of the child.
37But there are also parents who are neither genetic nor gestational, but who have become the psychological parents of the child and thus have an important contribution to make to their welfare. Adoptive parents are the most obvious example, but there are many others…
Once we recognise that legal status may be divorced from biological parentage (adoption, surrogacy, artificial conception) the question is whether the categories of persons who may be declared a legal parent are prescribed, or whether the decision of the High Court in Masson v Parsons may be read as extending the category of persons who may be declared a parent for the purpose of the Act to include those people who fall within Baroness Hale’s third category of “social and psychological parenthood”.
Australian decisions outside the family law context have also picked up on the significance of commitment to parenting to the establishment of “parent” status (H v Minister for Immigration and Citizenship (2010) 188 FCR 393 at [129]; Younas v Commonwealth (No 2) [2024] FCA 853 at [182] and [184]).
In Masson v Parsons, at first instance the trial judge based the conclusion of legal parentage on three factors: the biological connection between the child and the father, the intention to parent and the fact of having parented. Justice Cleary dismissed the application for a declaration pursuant to s 69VA but nonetheless made a factual finding that the biological father was a parent as per the ordinary meaning of the word.
Cases following Masson v Parsons
Some first instance decisions since Masson v Parsons have touched on the issue of who is to be regarded as a parent for the purpose of the Commonwealth law.
In Meyer & Dara [2020] FamCA 1043, Hartnett J was asked to make orders concerning a child born by artificial conception to a single woman with a known donor. The parties were not in a relationship. The parties’ evidence about their intentions concerning future parenting were contested. The birth mother had given the biological father the opportunity to parent for a brief period after birth. By combination of factors of biology, intention and performance of the parenting role, her Honour found the biological father was a parent – applying Masson v Parsons.
In Hamad & Hamad [2022] FedCFamC1F 664, Harper J found that while the applicant (who was not the biological father) had functioned as a psychological parent to the child for a time, he would not be regarded as a parent applying Masson v Parsons at the time of the hearing.
Interestingly, in that case his Honour observed the significance to the legislation (as it was at the time of the hearing) of the conclusion about whether an applicant was a “parent”. At that time, it made a difference to the application of the presumption in favour of equal shared parental responsibility (which only applied to parents) (at [35]) and to the application of some of the matters in s 60CC (3) of the Act, as then in force (at [39]).
Changes to Pt VII of the Act on 6 May 2024, which removed the presumption of equal shared parental responsibility and revised the s 60CC considerations, have changed the legislative situation. Nevertheless, it remains the position that the expression “parent” appears in the Act, such that there is a distinction to be drawn between parents and non-parents. A “parenting order” may be made in favour of a non-parent (s 64C). Section 60CC(2)(e) talks about the benefit to the child of a relationship with the “child’s parents” and “other people who are significant to the child” where it is safe.
In Mizushima & Crocetti [2024] FedCFamC1F 113, Austin J observed:
4While characterisation as a “parent” will influence the way in which factors under s 60CC of the Act are applied to the evidence at trial, the applicant was declared in February 2021 to be a person concerned with the children’s care, welfare and development so as to give him standing in the proceedings (s 65C(c)) and the Act does not import any presumption in favour of parents over non-parents in the determination of proper parenting orders for children (Maldera v Orbel (2014) FLC 93-602 at [79]–[81]; Valentine & Lacerra (2013) FLC 93-539 at [42]–[43] ; Aldridge & Keaton (2009) FLC 93-421 at [59]–[61], [75]–[81] and [83]). For that reason, the parties’ fierce contest over the applicant’s status as a “parent” is liable to be hollow.
The Act also uses the language “both” parents in ss 65C, 68R and 69C.While it does not arise in this case, as the making of a declaration that the respondent was a parent recognised only two legal parents, the broad definition of who may be a parent does allow for the theoretical possibility that legal parent status could be conferred on more than two parents of a child.

In Mizushima & Crocetti (No 3) [2024] FedCFamC1F 542, Curran J heard a case involving an application for a declaration that the putative father was a parent of twin children born by an artificial conception procedure to the respondent mother. The respondent mother carried the children but did not share a biological connection to the children, the embryo having been donated. The putative father did not have biological connection to the children and the primary judge found that he had not been in a de facto relationship with the mother at the time of the artificial conception procedure. It followed that s 60H was not engaged. The putative father was registered as a parent of the child on the child’s birth certificate and accordingly the primary judge considered the operation of s 69R of the Act. In reliance upon the submissions of the applicant that s 69VA had no role to play (since neither party had a biological connection to the child) the trial judge declined to make a declaration in reliance upon that section. Ultimately, in reliance upon the dicta in Masson v Parsons a declaration of parentage was made for both parents in the matter.
Consideration
The High Court concluded in Masson v Parsons at [29]:
…the question of whether a person qualifies under the Family Law Act as a parent according to the ordinary, accepted English meaning of “parent” is a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of “parent” and the relevant circumstances of the case at hand. The primary judge and the Full Court were correct so to hold.
So, was the primary judge here, in declaring that the respondent was a parent for the purpose of the Act, applying an ordinary contemporary Australian understanding of “parent”? What were the relevant factors?
Accepting that this is a matter of fact and degree, the following findings are drawn from the reasons of the primary judge:
(a)The appellant and respondent were in a relationship (which was not a de facto relationship) between 2004 and 2014, with two brief periods of separation (at [2] and [28]).
(b)Between 2008 and 2009 the parties endeavoured to conceive using IVF (at [30]–[31]).
(c)Following a failed IVF procedure in Country B in 2013, the appellant became pregnant with the child via IVF in Country B in 2014 (at [32]–[34]).
(d)The primary judge recorded at [37]:
The [appellant] returned to Sydney [in early 2014] and [shortly thereafter] told the [respondent] that she was pregnant. The [appellant] deposes that she said to the [respondent], “I will give you the choice if you want to be a father to the baby and form a family together or I will bring the baby up on my own.” She further deposes that the [respondent] replied in words to the effect of, “I want to be a father.”
(e)Prior to the child’s birth the parties attended a “baby intensive course” (at [38]).
(f)Prior to the child’s birth the parties decided to live together following the child’s birth (at [38]).
(g)The respondent was present at the child’s birth (at [39]).
(h)The appellant and respondent were named on the child’s birth certificate (at [1] and [44]).
(i)The appellant and respondent lived together as a de facto couple from late 2014 until 11 November 2017, during which time each provided care to the child (at [2]–[3] and [45]).
(j)After separation when time was not occurring between the child and the respondent, the appellant wrote to the respondent: “Please kindly confirm if you had received my message below and if you intend to organise any meeting with [the child] near future as [the child] misses you and loves to see you” (at [56]).
(k)No time between the child and respondent occurred for approximately a year until supervised time on 14 October 2018, 16 December 2018 and 10 February 2019 (at [58]).
(l)The respondent commenced proceedings on 20 May 2019 and interim orders dated 4 November 2019 provided for time between the child and the respondent which was graduated for a period of six weeks but culminated in an order which provided for the child to spend time with the respondent on three weekends in every four weekends from 1.30 pm to 5.30 pm on Saturdays and from 2.30 pm to 5.30 pm on Sundays. By the time of the final orders, these orders had been in operation for just shy of five years (at [59] and [64]).
(m)The respondent was actively involved in the child’s school (at [68]).
(n)Apart from two best school friends, the child identified “mummy” and “daddy” to the Family Report writer as the most important people in her life (at [20]).
(o)The Family Report writer, during observation sessions noted “an evident bond” between the child and the respondent (at [24]).
(p)The Family Report writer concluded the child “clearly identified her family as including her, [the appellant] and [the respondent]” (at [24]).
In the present case the respondent lacks a biological connection to the child but was found to have both formed the intention to parent prior to the birth of the child and to have in fact parented after the birth of the child. In addition, both the appellant and respondent registered the child’s birth naming the respondent as a legal parent. Where both parties register the birth of a child and include their names on the registration of birth such that the birth certificate issues, naming them as the legal parents of the child, this creates a rebuttable presumption. It is a public declaration by those persons of the identity of the persons who are to be regarded as the child’s legal parents.
It cannot be the case that the presumption created under s 69R by registration of birth must be necessarily rebutted by evidence of lack of biological connection because a non-biological parent may be a legal parent, and that information was available to the parties at the time of the registration of birth. Since the presumption was not rebutted by evidence before the primary judge (but the appellant had placed the legal status of the respondent as a parent in issue) the declaration was appropriate relief and would not attract appellate intervention.
We are comfortably satisfied that the statute imposes no requirement of biological connection to the making of a declaration under s 69VA. This leaves the primary judge free to determine the matter of parentage having regard to the evidence as a whole, providing that parentage is in issue in the proceedings. Accordingly, the primary judge did not err in making the declaration pursuant to s 69VA.
Ground 2: The primary judge erred in concluding that the legal basis upon which the appellant could be declared a parent of the child is the same legal basis upon which the respondent could be declared a parent of the child
The respondent’s status as a legal parent to the child was an issue in the proceedings. The appellant’s status as a legal parent to the child was not in issue in the proceedings. The fact that the primary judge made a declaration of parentage in favour of the appellant cannot itself demonstrate error. It is noted the Amended Notice of Appeal does not appeal from Order 2. There is no merit in Ground 2.
Ground 3: His Honour erred in failing to provide any or sufficient reasons for:
(a) making an order for equal shared parental responsibility; and
(b) why it is in the best interest of the child that there be an order for equal shared parental responsibility, notwithstanding the report, oral evidence and recommendations made by the Family Report writer that the appellant have sole parental responsibility
The ground contends inadequate reasons. We agree.
The law in respect of adequacy of reasons is well-settled. Reasons will be inadequate where it is not apparent how the decision was reached, upon what evidence the decision was reached, or the pathway that led to a stated conclusion (Sun Alliance Insurance Ltd v Massoud [1989] VR 8 (“Sun Alliance Insurance Ltd”) (cited with approval in Bennett and Bennett (1991) FLC 92-191 (“Bennett”)).
In Bennett at 78,266, the Full Court adopted the test for adequacy of reasons set out by Gray J in Sun Alliance Insurance Ltd, who said at 18:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:–
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b) justice is not seen to have been done.
The Family Report writer offered the following evaluative opinion concerning parental responsibility in her written report at [80]:
It is a concern for the Family Consultant how the parental responsibility aspect of [the child’s] care would play out for [the child] if either of the parent’s proposals were ordered. If [the appellant’s] allegations are accurate, and equal shared parental responsibility was ordered, this could create an environment for coercively controlling behaviour to continue. This may lead to increased parental conflict and impact parental mental health and parenting capacity, while also potentially leading to delays in important decisions being made for [the child]. It seems that the area of health care could be an issue that the parents would have differing views on. Equally, if [the appellant] was ordered to hold sole parental responsibility, while the Family Consultant is of the opinion that [the appellant] would make well informed decisions, based on the advice of professionals (such as doctors and teachers), that are in the best interest of [the child], this may further isolate [the respondent] from involvement in [the child’s] life. Ideally, if the parents’ co-parenting relationship improved with the aid of therapeutic intervention, where they each could demonstrate their individual capacity to respect and value opinions and be open to negotiate and reach a compromise, then them each holding equal shared parental responsibility could be a possibility. However, as mentioned earlier there is some concern that [the respondent] has very steadfast views in relation to health in particular, that could potentially lead to increased parental conflict and poorer outcomes for [the child] overall. If this was to be the case, it may be appropriate for [the appellant] to hold sole parental responsibility for [the child].
The expression of the expert opinion is firmly tied to findings which may be made by the primary judge.
The primary judge dealt with the issue of parental responsibility only as follows:
159As I will make an Order for the parties to have equal shared parental responsibility for [the child], I must consider [the child] spending equal time or substantial and significant time with each parent.
We are unable to ascertain why the primary judge reached the conclusion that he did about parental responsibility since the reasons do not engage with the factual findings which were required to underpin the recommendation for equal shared parental responsibility. That is not to say that the primary judge was obliged to adopt the expert opinions provided that the reasons for judgment made plain why the evidence was rejected or why different evidence is preferred (Hall and Hall (1979) FLC 90-713; Andrew & Delaine [2009] FamCAFC 182; Reeves & Grinter [2017] FamCAFC 19).
We are unable to ascertain why the primary judge made the order the respondent sought and declined to make the order the appellant sought.
Ground 3 is established.
Ground 4: His Honour failed to give any, or sufficient, weight or consideration to the child’s concerns about the respondent expressed to the appellant and the concerns of the Family Report writer as to the impact of the poor co-parenting relationship on the child
This ground was directed at Order 3 and Order 5. As discussed under Ground 3, we are satisfied that the complaint about lack of reasons for the making of Order 3 has been established and consequently, to the extent that this complaint is in effect repeated here (as it relates to Order 3), we are not required to revisit it.
The situation is different in respect of Order 5. The primary judge referred to considerable evidence about the nature of the relationship between the child and the respondent and to evidence about the parties’ poor co-parenting relationship. However, the submissions on behalf of the appellant do not demonstrate that the time orders failed to appreciate the parties’ poor co-parenting relationship. The reasons for judgment make reference to this topic (and the views of the Family Report writer concerning the same) at [19] and [160]. The Family Report writer had plainly considered the issue when recommending more extensive time than the appellant considered appropriate, and the primary judge acknowledged those recommendations about time at [25].
The primary judge is not required to mention every piece of evidence in producing reasons for judgment (Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]; Fox v Percy (2003) 214 CLR 118 at [41]). We are comfortably satisfied that the primary judge did consider the evidence about the poor relationship when considering the orders relating to time.
To the extent that this ground contends that the primary judge failed to afford sufficient weight to the child’s expressed concerns, the Summary of Argument provides some examples of the child feeling uncomfortable (or the Family Report writer surmising that the child might feel uncomfortable) about certain actions of the respondent. It is not clear from the submissions how that ought to have impacted upon the time orders and hence no error has been established in that regard.
Ground 5: His Honour failed to take into account a material consideration when finding that there was no coercive or controlling behaviour towards the appellant by the respondent and/or failed to provide reasons for that finding and/or failed to give any weight to the agreed facts and the impact on the appellant and the concerns of the Family Report writer – constituting a miscarriage of justice
At the hearing of the appeal, counsel for the appellant conceded that this ground was a complaint about the adequacy of the primary judge’s reasons. The primary judge understood that the appellant was submitting that the Court should find the conduct of the respondent was coercive and controlling. The primary judge concluded that the respondent’s conduct could not be characterised in that way (at [41] and [111]). In reaching that conclusion the primary judge indicated he had considered paragraphs 31 to 56 of the appellant’s affidavit and the cross-examination of both parties.
The reasons tell the reader what evidence has been read by the primary judge but not why relevant evidence has been accepted or rejected. That is inadequate because it is the mere expression of a conclusion as opposed to any (even cursory) explanation of the basis upon which the conclusion has been reached.
We accept that, absent such an explanation, this ground has been established.
Ground 6: His Honour erred with respect to Order 5 by failing to refer to or give any consideration or weight to the Family Report writer’s expressed concerns and opinion that spend time with orders should be reduced
This ground is misconceived. The recommendation of the Family Report writer was for a reconfiguration of the time as opposed to a reduction of the time (Family Report dated 22 February 2021, paragraph 90).
Ground 7: His Honour failed to give meaningful consideration or weight to the issue of the child’s surname, where the child lives primarily with her [Country C] mother, and the view of the Family Report writer, and failed to give adequate reasons as to why his Honour rejected those views
The Family Report writer did not make a specific recommendation in her written report in relation to the child’s surname. She did say:
88.In reference to [the child’s] surname, she has been legally named on her birth certificate ‘[X Berzina]’. It is understandable that [the appellant] would appreciate some reference or connection for [the child] to her, which could be achieved by the parents agreeing on a double-barrel surname. A double-barrel surname could also assist in further reinforcing the ‘family story’ that [the child] is currently experiencing, that [the appellant] is her mother and [the respondent] is her father, and assist in establishing a further sense of identity for [the child], particularly if questions regarding her identity arise as she grows older. It is likely that if the parents engage in conflict regarding the surname, based on their own views on it, that this will impact [the child’s] wellbeing more than any change of legal name.
The primary judge referred to this observation in his reasons for judgment (at [24]). Accordingly, it cannot be suggested that he did not consider the opinion. Further, his Honour specifically noted that neither party sought an order for a hyphenated surname.
Ultimately, the primary judge gave greater weight to the matters discussed at [166]. This ground is not established.
DISPOSITION
Having found merit in Grounds 3 and 5 we are obliged, having regard to the amount of time which has passed (and the necessity to offer the parties the opportunity to file further evidence), to remit the matter for rehearing. This is most unfortunate for a number of reasons including the length of the litigation, the cost of further litigation, the impact of the litigation on the child and the post-separation parenting relationship between the parties. As the Full Court observed in Zahawi & Rayne [2016] FamCAFC 90:
47All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflicts and as selflessly as circumstances reasonably allow…
COSTS
The appeal has been allowed. The appellant sought that the respondent pay the costs of the appeal in the event that the appeal were allowed. We are satisfied that the appeal has succeeded as a consequence of legal error on the part of the primary judge not induced by the respondent. Accordingly, while we are not persuaded to order that the respondent pay the appellant’s costs, we are satisfied that this is a matter in which the parties should have the benefit of certificates under the Federal Proceedings (Costs) Act 1981 (Cth).
GILL J:
I agree with the judgment of Aldridge and Christie JJ in relation to Grounds 3 through to 7, and would set aside those orders identified by Aldridge and Christie JJ and remit those matters for rehearing.
Similarly, I agree with their Honours’ conclusion as to Ground 2 and consider that no error has been established in respect of the declaration at Order 2 that the appellant is a parent of the child.
For the reasons set out below, I am in respectful disagreement with their Honours regarding Ground 1 and would set aside the declaration that the respondent is a parent of the child at Order 1 and substitute an order refusing the respondent’s application for a declaration that he is a parent.
I agree with the orders for costs certificates.
THE PARENTAGE ISSUE
The respondent sought, and was given, the relief of a declaration that he is a parent of the child who is the subject of these proceedings. The relief was given in the absence of any genetic or biological connection between the respondent and the child, who was born by an artificial conception procedure, and in the absence of any specific statutory provision giving him the status of parent. It was reliant upon the notion that in the circumstances of the case, he falls within the ordinary meaning of parent, despite the absence of biological connection. It further relied upon a presumption arising from his name being placed on the child’s birth certificate, which the primary judge found was not rebutted by the circumstances of the case.
Who is a parent?

Although “parent” is a term of significance within Pt VII of the Act, it is not a term that is defined in the Act, other than at s 4(1) where it is identified as inclusive of adoptive parents.
In circumstances such as here, where a child is born through an artificial conception procedure, s 60H confers the status of parent upon a person who may or who may not have a biological connection with the child under particular circumstances. Those were not the circumstances of this case. The section, in short, requires a marriage or de facto relationship to be in place at the time of conception, and that the conception is accompanied by consent of the other proposed parent. Under such circumstances, the couple are the parents to the exclusion of all others who may have contributed biological material to the process. In this way s 60H operates not only to confer the status of parent, but to otherwise deny the status of parent to particular persons who have a biological connection under those same circumstances.
In incorporating adoption and particular examples of artificial conception within the meaning of parent, the Act implicitly recognises the significance of biological connection to the meaning of parent. At the same time, it provides recognition that biology is not always the end point for the determination of who is a parent.
The issue of who is a parent, in circumstances of artificial conception falling outside the scope of s 60H, was the subject of the consideration of the High Court in Masson v Parsons.
There the Court considered that s 60H “is not exhaustive of the persons who may qualify as a parent of a child born as a result of an artificial conception procedure” (at [26]). Importantly they concluded that “parent” within the Act should be understood as bearing its natural and ordinary meaning, that meaning not being displaced by any contrary indication of parliamentary intention drawn from the “text, structure or purpose of the legislation” (at [26]).
As to the effect of s 60H the Court concluded that “its effect is plainly enough to expand rather than restrict the categories of people who may qualify as a parent of a child born as a result of an artificial conception procedure” (at [28]).
The specific result in Masson v Parsons was to include as a parent a person who, in circumstances of artificial conception, fell outside both the inclusory and exclusory provisions of s 60H, on the basis that the person fell within the ordinary meaning of “parent”. In conclusion, the plurality observed that the meaning of “parent” is “a question of fact and degree to be determined according to the ordinary, contemporary Australian understanding of ‘parent’ and the relevant circumstances of the case at hand” (at [29]).
Particular attention needs to be paid to the circumstances faced by the High Court that led the Court to accept that the appellant in that case was a parent despite falling beyond the scope of s 60H.
The Court there faced an argument that the appellant, who was biologically connected to the child, was a “sperm donor” and accordingly fell outside the ordinary meaning of “parent”. The Court rejected the characterisation of the appellant as a mere “sperm donor” observing that, as well as being the biological father, he had provided his semen on “the express or implied understanding that he would be the child’s parent; that he would be registered on her birth certificate as her parent, as he is; and that he would, as her parent, support and care for her, as since her birth he has done” (at [54]).
The Court left open the question as to whether a man who merely provides his semen to facilitate artificial conception should be considered to be a parent.
The circumstances in Masson v Parsons are markedly different from the current case.
As identified by the primary judge, the question remains whether the ordinary meaning of “parent” extends in this case to the respondent. It was this approach that was appropriately adopted by the primary judge in focussing upon whether the circumstances rendered the respondent a parent.
This case
Unlike Masson v Parsons, the respondent in this case bears no biological relationship with the child. He did not provide his agreement to the artificial conception, nor at that stage did he in any manner offer his role as parent, or his ongoing support to any child produced as a result of the process. Rather, this case bears the following circumstances as identified by the primary judge (the bold emphasis identifies those specifically referred to by the primary judge in concluding that the respondent is a parent):
(a)The appellant and respondent were in a relationship (which was not a de facto relationship) between 2004 and 2014, with two brief periods of separation (at [2] and [28]).
(b)From early in their relationship the parties spoke about having a child together, although they were unsuccessful in their attempts to conceive naturally. Between 2008 and 2009 the parties endeavoured to conceive using IVF using their own and other genetic material. They engaged in four cycles of IVF (at [30]–[31]).
(c)In early 2013 the appellant told the respondent that she wished to undergo IVF at a clinic in Country B. The primary judge found that the respondent was concerned as to health risks to the appellant and child. The parties dispute, and no finding was made, as to the respondent telling the appellant that the relationship would be over should she pursue the IVF in Country B. The attempt in 2013 was not successful (at [32]).
(d)The appellant engaged in an IVF procedure in Country B again in 2014. Although the respondent asserts that he was emotionally supportive of the appellant on this occasion, despite his concerns as to her and the child’s health, this was contradicted by contemporaneous correspondence from the appellant to the respondent’s sister noting the end of the relationship at the respondent’s behest. This was consistent with the respondent’s later account to the Family Report writer of his lack of support for this second round of IVF in Country B. The primary judge found that the respondent’s lack of consent was only out of concern for the health of the appellant and of any child that might ensue (at [117]).
(e)The appellant became pregnant with the child via IVF in Country B in 2014 (at [32]–[34]).
(f)The primary judge recorded at [37] that the appellant returned to Sydney in early 2014 and shortly thereafter, told the respondent that she was pregnant. The appellant deposed that she said to the respondent, “I will give you the choice if you want to be a father to the baby and form a family together or I will bring the baby up on my own.” She further deposed that the respondent replied in words to the effect of, “I want to be a father”.
(g)The parties resumed their relationship, although still not as a de facto couple. The respondent supported the appellant through the pregnancy, and the respondent purchased a pram and a baby capsule. Prior to the child’s birth the parties attended a baby intensive course (at [38]).
(h)Prior to the child’s birth the parties decided to live together following the child’s birth (at [38]).
(i)The respondent was present at the child’s birth (at [39]).
(j)The appellant and respondent were named on the child’s birth certificate (and they together decided to name the child) (at [1] and [44]).
(k)The appellant and respondent lived together as a de facto couple from late 2014 (following the birth) until 11 November 2017, when the child was aged almost three years, during which time each provided care to the child (at [2]–[3] and [45]).
(l)After separation when time was not occurring between the child and the respondent the appellant wrote to the respondent: “please kindly confirm if you had received my message below and if you intend to organise any meeting with [the child] near future as [the child] misses you and loves to see you” (at [56]).
(m)No time between the child and respondent occurred for approximately a year until supervised time on 14 October 2018, 16 December 2018 and 10 February 2019 (at [58]).
(n)The respondent commenced proceedings on 20 May 2019. Interim orders dated 4 November 2019 provided for time between the child and the respondent which gradually increased over a period of six weeks and culminated in orders that provided for the child to spend time with the respondent during three weekends a month from 1.30 pm to 5.30 pm on Saturdays and from 2.30 pm to 5.30 pm on Sundays. By the time of the final orders these orders had been in operation for just shy of five years (at [59] and [64]).
(o)The respondent was actively involved in the child’s school (at [68]).
(p)Until at least the time of the preparation of the Family Report in December 2020, more than three years after separation, the child referred to the respondent as “daddy” (at [47]).
(q)Apart from two best school friends, the child identified “mummy” and “daddy” to the Family Report writer as the most important people in her life (at [20]).
(r)The Family Report writer during observation sessions conducted in late 2020 noted “an evident bond” between the child and the respondent (at [24]).
(s)The Family Report writer concluded the child “clearly identified her family as including her [and the appellant and respondent]” and regarded the respondent as her father (at [24]).
(t)The primary judge found that the child regarded the respondent as, in all respects, her father, until in 2021 when the appellant told the child that the respondent was not her father. Since this time the child has referred to the respondent to others by the respondent’s first name when in the presence of the appellant, and as “Daddy” or “Dad” when in the presence of the respondent, or absence of the appellant (at [69]).
(u)The respondent regards himself as the child’s father (at [122]).
The primary judge then, having specifically recited the bolded aspects of the findings (no doubt in the context of the other findings) concluded at [116] that the respondent was the child’s “parent according to the ordinary, contemporary Australian understanding of ‘parent’”.
The parties’ positions as to the meaning of “parent”
The parties at first instance and on appeal addressed the issue of the meaning of parent in the following manner.
By his Case Outline before the primary judge the respondent relied upon the presumption arising from the birth certificate, recited facts pertaining to the relationship between the parents and involvement of the respondent in the child’s life, that the child identified the respondent as her father, and would be confused by the denial of that role, and that, accordingly, it was not in her best interest to declare otherwise. This approach did not directly grapple with the meaning of parent and conflated the consideration of best interests with the determination of whether the respondent was a parent.
By his written submissions following the trial the respondent relied upon the fact that each party had acted as a parent to the child and attempted to fulfill their respective parenting obligations. He further relied upon the presumption of parentage arising from the birth certificate. The respondent relied upon the parties having lived together for nearly the first three years of the child’s life, that the child knew him as her father, and that he has remained engaged with the child’s care, welfare and development. The respondent emphasised that a finding contrary to the respondent being a parent was inconsistent with the child’s best interests. In his further written submissions he asserted that being recorded on the birth certificate, being known as the father during cohabitation, and being identified as the father by the child in Family Report interviews meant that he fell within an expanded definition of parent, and asserted that in Masson v Parsons the High Court accepted a person could be a parent genetically, gestationally and psychologically. He asserted that he was psychologically a parent, and should thereby be the subject of a declaration that he is a parent.
By her written submissions at trial the appellant relied upon the lack of biological connection, and that the circumstances did not fall within s 60H of the Act. The concept of the meaning of parent was not otherwise grappled with.
The issue of the scope of the meaning of “parent” was the recipient of little attention at either first instance or appellate level.
What is the ordinary meaning of “parent”?
The plurality in Masson v Parsons referred to the judgment of Baroness Hale of Richmond in Re G. There, Baroness Hale distinguished between a “legal parent” and a “natural parent.” The plurality noted her broad description of the concept of “natural parent” as incorporating a parent “genetically, gestationally and psychologically” (at [29]). In that case the respondent, who while in a same-sex relationship with the appellant had raised the children, was described as a parent in the psychological sense. The appellant was described as both a psychological and biological parent. The issue being wrestled with was the weight or significance to be ascribed to the appellant as the biological and psychological parent in determining the children’s best interests.
The plurality observed that the ordinary, accepted meaning of parent may also carry that breadth in this country, although they did not conclude that this was the case. Rather, they identified the construction adopted by Baroness Hale as an example of determining the meaning of “parent” within legislation as “a question of fact and degree to be determined according to the ordinary, contemporary [and in this case] Australian understanding of ‘parent’” (at [29]).
It is no easy or obvious task to mark out the boundaries of the ordinary meaning of “parent”.
Although dictionary meanings may be of assistance in determining ordinary meaning, the parties in this case identified none, and to embark on a survey of them now risks unfairness to the parties who were not on notice to identify the strengths and weaknesses of the adoption of a dictionary meaning.
The scope of the ordinary meaning is to be considered in the light of the legislation as a whole, including in its treatment of the subject of “parent”.
The general statutory framework is suggestive that the meaning is allied to the concept of “either” or “both” parents. For example, s 65C, which deals with who may make an application for a parenting order, identifies “either or both of the child’s parents”. That is not a position that negatives the potential for non-parents to be important in a child’s life, as the section also empowers “any other person concerned with the care, welfare or development of the child” to make an application. It does however presume that there can be only two parents, which, subject to the specific exceptions at s 60H and in respect of adoption at s 4(1), suggests an assumption of biology.
Similarly, the provision of s 69W for the compelling of biological testing is suggestive of the centrality of biology to determining parenthood. Whilst the powers to obtain evidence more generally in respect of parentage at s 69V are not constrained to the taking of biological samples, it may be observed that establishing biological connection is not restricted to the taking of samples, nor are samples available in all cases, such as where there is a deceased parent. The breadth of s 69V is a neutral matter. It is neither suggestive of biology as determinative, nor otherwise.
Some implications may also be taken from the distinction within the Act made between a parent and a step-parent. Section 4(1) defines “step-parent” in a manner that would usually pick up the respondent in these proceedings. It further appears in the definition of “relative” and in ss 66D, 66M, 66N and 66X which each deal with child maintenance.
It can be seen that in these ways the Act distinguishes between people who are parents, and people who function as though they are parents.
Whilst these statutory features carry implications as to the scope of “parent,” they do not give clarity to the boundaries of the ordinary meaning.
Against this statutory background it may be observed that many persons who are parents fail to meet any of the responsibilities of being a parent, including those things described by Baroness Hale as constituting a psychological parent. Parents can be involved or uninvolved. Parents can be beneficial or harmful. Parents can love and parents can abuse. Parents can behave self sacrificially and concern themselves with what is best for a child, and parents can be completely self-absorbed, concerned with their own rights and priorities.
It may also be observed that many persons who are not biologically parents, for example step-parents, grandparents and other persons concerned with the care, welfare and development of a child bring greater benefit to a child than those who are the biological parents. However, there is no mistaking those categories of person as parent despite the parental function that they discharge.
Neither failure in the role removes a person as a parent, nor does taking on the role make that person a parent. This points away from the ordinary meaning of parent as a consequence of the performance of what might be hoped to be the function of a parent, absent biological connection.
Further, “parent” carries with it meaning as to origin. It carries with it answers to the question of where a person comes from, which are answered differently than by reference to the family in which a person was raised. The importance of that meaning is reflected in the arrangements that are in place to enable adopted children to understand who their biological parents might be, despite the legal displacement of such persons as parents.
To enable the conferring of the status of parent, by one parent upon another person, even accompanied by good will and parent-like commitment on the part of the other, works a fundamental shift in what it means to be a parent.
In this case, the appellant invited the respondent to take on the status of parent, to which he agreed, and upon which he acted on an ongoing basis, functioning as a parent, in all of the circumstances as identified by the primary judge above. Together they engaged in parenting and recorded his name on the child’s birth certificate.
As a matter of fact and degree this departs significantly from the factual situation in Masson v Parsons where the father was not only biologically connected, but also functioned as a parent and provided support for the child, consistent with the agreed approach at the time of conception.
He was a parent in the biological sense, but not merely in the biological sense. He may have provided semen to facilitate artificial conception, however he did so on the basis that he would be the child’s parent, and suitably involved in the child’s life. It was the combination of these circumstances that led to the conclusion of parenthood in that case.
This case raises the question of whether, as a matter of fact and degree, the agreement between the parties as to the conferral of the status of parent upon the respondent, accompanied by his discharge of that role in the circumstances identified above, are sufficient absent the biological connection.
I am unable to agree that the circumstances, in the absence of the biological connection that was present in Masson v Parsons, are of a sufficient degree to bring the respondent within the meaning of parent.
Whilst some emphasis has been placed upon the presumption arising from the placing of the respondent’s name on the register of births pursuant to s 69R, the above conclusion that the matters of fact and degree in this case do not render the respondent a parent are sufficient to rebut the presumption pursuant to s 69U.

Accordingly, I would allow the appeal in relation to the declaration, setting it aside, and substituting an order refusing the declaration.
Whilst this case does not negate the notion that a child may come to regard a person without biological connection as functionally a parent, or that a person without biological connection may regard themselves as functionally a parent to the great benefit of an individual child, the conversion of such into the status of parent will require the work of the legislature to extend that meaning beyond the ordinary meaning.

I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Gill & Christie.
Associate:
Dated: 28 May 2025

NAA 308 of 2024 SYC 3182 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MS OPHOVEN Appellant
AND:	MR BERZINA Respondent

Appeal from:	Berzina & Ophoven [2024] FedCFamC2F 1472
Appeal number:	NAA 308 of 2024
File number:	SYC 3182 of 2019
Judgment of:	ALDRIDGE, GILL & CHRISTIE JJ
Date of judgment:	28 May 2025
Catchwords:	FAMILY LAW – APPEAL – PARENTING – Appeal from declaration made pursuant to s 69VA of the Family Law Act 1975 (Cth) that the respondent is a parent of the child – Where the appellant contends the declaration was erroneous as the respondent lacked a biological connection to the child – Discussion of the term “parent” – Consideration of Masson v Parsons (2019) 266 CLR 554 – Where a presumption of parentage arose from the respondent being named on the birth certificate – Where the presumption was not rebutted – Where the appellant placed the respondent’s parent status in issue – No error established in the making of a declaration of parentage – Adequacy of reasons – Where the reasons do not reveal the factual findings relied on for the order of equal shared parental responsibility – Where the reasons do not reveal the primary judge’s acceptance or rejection of evidence on coercive and controlling behaviour – Reasons inadequate – Appeal allowed – Matter remitted for rehearing.
Legislation:	Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) Pt VII, ss 4, 60B, 60CC, 60H, 60HB, 61B, 64C, 65C, 66D, 66M, 66N, 66X, 68R, 69C, 69P, 69Q, 69R, 69S, 69T, 69U, 69V, 69VA, 69W Family Law Amendment Act 2000 (Cth) Family Law Reform Act 1995 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Family Law Regulations 1984 (Cth) reg 12CA Explanatory Memorandum, Family Law Amendment Bill 1999 (Cth) Status of Children Act 1996 (NSW) s 14
Cases cited:	Andrew and Delaine [2009] FamCAFC 182 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA P148 Bernieres & Dhopal (2017) FLC 93-793; [2017] FamCAFC 180 Carlton v Bissett (2013) 49 Fam LR 503; [2013] FamCA 143 Donnell v Dovey (2010) FLC 93-428; [2010] FamCAFC 15 Ellison v Karnchanit (2012) 48 Fam LR 33; [2012] FamCA 602 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 G v H (1993) FLC 92-380; [1993] FamCA 39 G v H (1994) 181 CLR 387; [1994] HCA 48 Green-Wilson & Bishop [2014] FamCA 1031 Groth v Banks (2013) 49 Fam LR 510; [2013] FamCA 430 Gustz & Denniston [2019] FamCA 16 H v Minister for Immigration and Citizenship (2010) 188 FCR 393; [2010] FCAFC 119 Hall and Hall (1979) FLC 90-713; [1979] FamCA 73 Hamad & Hamad [2022] FedCFamC1F 664 Lamb v Shaw (2017) 57 Fam LR 543; [2017] FamCA 769 Masson vParsons (2019) 266 CLR 554; [2019] HCA 21 McK and K v O (2001) FLC 93-089; [2001] FamCA 990 Meyer and Dara [2020] FamCA 1043 Mizushima & Crocetti [2024] FedCFamC1F 113 Mizushima & Crocetti (No 3) [2024] FedCFamC1F 542 Re C (No 2) (1992) FLC 92-284 Reeves & Grinter [2017] FamCAFC 19 Re G (Children) [2006] 1 WLR 2305; [2006] UKHL 43 Re Mark: An application relating to parental responsibilities (2003) FLC 93-173; [2003] FamCA 822 [2000] FamCA 1280 (unreported) Sun Alliance Insurance Ltd v Massoud [1989] VR 8 Tobinv Tobin (1999) FLC 92-848; [1999] FamCA 446 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 Younas v Commonwealth (No 2) [2024] FCA 853 Zahawi & Rayne [2016] FamCAFC 90
Number of paragraphs:	140
Date of hearing:	3 March 2025
Place:	Sydney
Counsel for the Appellant:	Ms Murphy (direct brief)
Counsel for the Respondent:	Mr Butters (direct brief)

ORDER MADE BY:	ALDRIDGE, GILL & CHRISTIE JJ
DATE OF ORDER:	28 MAY 2025