Who is a Parent? It can be more complex than you’d think.
At first glance in Parenting matters, the issue of who is a parent tends to be fairly cut and dry, however that is not always the case in recent years, with the changing face of ‘family’ broadening with the use of surrogacy, the increase in the number of same sex couples and of blended families. In some circumstances the Court has been required to exercise its power to make a declaration on who a child’s parents are. This decision is further complicated by the fact that the Family Law Act does not offer a comprehensive definition what who or what a parent is in family law proceedings, instead applying the relevant circumstances of the matter and a contemporary understanding of what a parent is in order to determine who is a parent.
The question of who is or isn’t a parent can be made all the more difficult to determine when considering the rise in surrogacy and in vitro fertilisation which can muddy these waters. In September 2024, The University of NSW released their 2022 Report on Assisted Reproductive Technology in Australia and New Zealand which sets out that, in 2022, 17,963 children were born following the use of Assisted Reproductive Technology treatments in Australia.
Ophoven & Berzina [2025]
The matter of Ophoven & Berzina is a matter that heard by the Federal Circuit and Family Court of Australia in late May 2025 in which the issue of who was a parent and what was the requirement to be considered a parent was considered.
To set the scene, Ms Ophoven & Mr Berzina, who were in a relationship but were not in a de-facto relationship, travelled overseas to undergo an in vitro fertilisation procedure, in which Ms Ophoven was implanted with a donor’s egg and donor’s sperm, before returning to and giving birth in NSW. As a result, the child had no genetic connection to either Ms Ophoven or Mr Berzina, but both were named as parents on the child’s birth certificate.
After the child was born, Ophoven & Berzina moved in together, However the relationship broke down several years later and the parties separated when the child was 2 years and 11 months old.
Legal proceedings were then commenced and proceeded to a trial before a Judge. At the trial, the Court determined that both Ms Ophoven & Mr Berzina were, that the parties should share parental responsibility for the child and that the child was to spend time with Mr Berzina.
Ms Ophoven’s argument
Ms Ophoven, who was decidedly unhappy with the outcome of the trial, appealed the decision. In her opining the Court had made a mistake in declaring Mr Berzina a parent as he was not biologically connected to the child and that while the law did not specify that there should be biological connection between a parent and child, legal precedent supported the requirement of a biological connection before the Court could make a declaration of parentage
Ms Ophoven also argued that the Court had failed to provide sufficient reasoning to support the Order of shared parental responsibility and that the provided reasonings did not address Family Report writer’s express recommendation that Ms Ophoven have sole parental responsibility.
The Court’s decision
When considering Ms Ophoven’s argument that Mr Berzina should not be recorded as the child’s father, the Court considered the current Family law legislation and historical case law and applied it to the facts of the matter.
The Court determined that the trial judge had not made a mistake when declaring that Mr Berzina was, legally speaking, a parent of the child. The Court said that while Mr Berzina lacked a biological connection to the child, it was clear from the evidence that Mr Berzina & Ms Ophoven had agreed to parent the child together before the child’s birth and had both parented the child after the child’s birth. In addition to this the Court considered the fact that Ms Ophoven & Mr Berzina had registered the birth of the child and included their names on the child’s birth certificate, which named them as the legal parents of the child.
When considering Ms Ophoven’s argument that the Court had failed to provide sufficient reasoning to support the Order of shared parental responsibility and that the reasonings did not address Family Report writer’s recommendations, the Court determined that Ms Ophoven was correct the Court set aside the parental responsibility orders and relisted the matter for a further hearing.
Persons with an interest in the care of a child
Under the Family law act, parenting orders for a child can be applied for by the child’s parents, the child, the grandparents or any other person concerned with the care, welfare or development of the child. For example, a person concerned with the care, welfare or development of the child could be a close relative, such as an aunt or uncle, or the child’s step-parent, though the definition is not limited to these examples. As the legislation provides any person concerned with the care, welfare or development of a child can apply. Additionally, the court has the ability to make parenting orders in favour of some other person who is not the parent of a child.
Voice Lawyers: Your Guide in Family Law Matters
This update is general in nature and is not legal advice. If you need help dealing with a parenting dispute or require assistance with a family law matter, at Voice Lawyers, we hear you.
If you are experiencing or contemplating separation, we suggest you seek legal advice as early as you can, even if you do not intend to separate for a few months or even years. We offer a 90 minutes early separation strategy session Voice Lawyers — Divorce, Separation and Family Law to prepare and inform clients of the process. Every family’s situation is different, and advice tailored to your specific circumstances can assist you in achieving your best possible outcome. We can assist if you would like a second opinion.
We help people navigate the complexities of family law with confident, practical advice. You can contact us at office@voicelawyers.com or call 02 9261 1954 to book a consultation to speak with one of our lawyers.
By Enda Byrne