Ophoven & Berzina

Case [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

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AGLC
Ophoven & Berzina [2025] FedCFamC1A 97
Case
[2025] FedCFamC1A 97
Decision Date

CaseChat Overview and Summary

The appeal in Ophoven & Berzina involved the determination of parentage and care arrangements for a child born via IVF, with no genetic connection to either party. The child was named on both parents' birth certificates, and the parties were in a de facto relationship post-birth. The primary judge declared the respondent a parent of the child, a decision contested by the appellant. The appeal raised issues of law, weight, and reasons. The court examined whether the primary judge erred in declaring the respondent a parent under section 69VA of the Family Law Act 1975. The High Court's observation in Masson v Parsons that parentage is a question of fact and degree was considered. The court found that the primary judge's declaration was consistent with an ordinary contemporary Australian understanding of "parent." Despite the appellant's argument that the presumption of parentage was rebutted, the court found no error in the declaration. However, the court found the reasons inadequate, as they did not detail the factual findings or address the evidence of coercive and controlling behaviour. The appeal was allowed, and the matter was remitted for rehearing.

The court's reasoning focused on the application of Masson v Parsons, which emphasised the factual and degree-based nature of parentage. The primary judge's findings, including the parties' relationship history, involvement in the child's birth, and the child's recognition of the respondent as "dad," supported the conclusion that the respondent was a parent. The court acknowledged the seriousness of the parentage issue but upheld the primary judge's decision. The inadequacy of the reasons, however, necessitated a rehearing. The court ordered the appeal allowed, specific orders set aside, and the matter remitted for rehearing, granting costs certificates to both parties for the appeal and the rehearing.

Orders

Orders of the court

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.

Background

Background to the litigation

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”).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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]).