Beyond Biology: How the decision of Ophoven & Berzina is breaking down barriers in Family Law

Written By: Simran Suvarna

The recent decision by the Full Court of the Federal Circuit and Family Court of Australia in Ophoven & Berzina [2025] FedCFamC1A 97 has redefined what it means to be a parent under Australian family law. The Court confirmed in its decision that a person does not need to be biologically related to a child to be legally declared their parent under section 69VA of the Family Law Act 1975. This is a significant development in recognising the diversity of modern familial structures.

The Story Behind the Case

In this case, the mother gave birth to a child in New South Wales following an overseas in vitro fertilisation procedure. The child had no genetic link to either parenting party. The parties commenced a de facto relationship after conception and were both named as parents on the child’s birth certificate. They then separated when the child was 2 years and 11 months old. The father took an active parenting role in the child’s life and hence, the Tria Judge declared him a parent under s69VA of the Family Law Act and made shared parental responsibility orders. The mother then appealed the parentage declaration and the related parenting orders.

A New Way to Define Parenthood

Justices Aldrige and Christie upheld the High Court’s position in Masson v Parsons [2019] HCA 21 that a strictly biological approach requires evaluation, and that parentage should instead be determined by looking at three key factors:

1. Biological connection – Are they genetically related to the child?
2. Intention to parent – Did they plan or agree to take on the role of a parent?
3. Actual parenting role – Have they been actively involved in raising the child?

This more holistic test recognises that parenting is a lived experience, not just a genetic status. In adopting this approach, they concluded that the father’s intention to parent prior to the birth of the child coupled with his actual parenting involvement after the birth of the child (determined based on the facts provided) were enough to be declared a parent under s 69VA, and the parenting declaration made by the Trial Judge was upheld.

Why it matters

This decision opens the door for non-biological parents – such as grandparents, stepparents, intended parents in surrogacy arrangements, non-birth parents in same-sex relationships and non-family members – to be legally recognised for the parental roles they may play in children’s lives. Recognising these relationships in law not only affirms the rights of those parents but, more importantly, contributes to fulfilling the paramount consideration of the best interest of the child entailed in s60CC of the Family Law Act, across all parenting matters.

How we can help

Lewis Family Lawyers are experienced and passionate about helping non-biological parties who fulfil vital parental roles in the lives of children, including grandparents, stepparents and non-family members, gain the recognition they deserve. If you or someone you know is seeking to legally solidify their status as a parent in a child’s life, contact us today on (02) 9159 9049.