By Craig Nicol and Keleigh Robinson
Children – Child born by in vitro fertilisation – Biological connection with child is not required for person to be declared a parent pursuant to s 69VA (per Aldridge & Christie JJ, Gill J in dissent)
In Ophoven & Berzina [2025] FedCFamC1A 97 (28 May 2025) the Full Court (Aldridge, Gill & Christie JJ) heard a mother’s appeal from a declaration that her former de facto spouse was a parent of a child pursuant to s 69VA.
The appellant mother (“appellant”) gave birth to the child in New South Wales following an in vitro fertilisation procedure undertaken overseas ([2]). Neither party had a genetic connection to the child. The appellant and respondent father (“respondent”) were in a relationship, but not a de facto relationship at the time of the child’s conception.
At trial, the respondent was declared a parent. The grounds of appeal included that the s 69VA declaration was an error of law.
As to parentage, Aldridge & Christie JJ (as majority) said (from [14]):
“Section 69V itself does not mention biological connection between parent and child (in contrast to s 60H) …
…
[68] 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 … 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 …
[69] 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 …
[70] 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.”
Gill J dissented in “respectful disagreement … and would set aside the declaration that the respondent is a parent of the child” ([96]).
Costs certificates were ordered.
Property – Court erred in its finding of husband’s bank account balance – Property pool overstated by 77 per cent – Error was “fundamentally material” and generated a miscarriage of discretion
In Felip & Biovin [2025] FedCFamC1A 87 (16 May 2025) Campton J heard a husband’s appeal in a property case.
The husband and wife were married for 20 months and had no children. Following separation, the wife sought an adjustment of property 70:30 in the husband’s favour and spousal maintenance. The trial judge ordered a 90:10 division in the husband’s favour ([14]).
On appeal, the husband said that the trial judge erred by finding that an ANZ account in his name had a balance of $1,225,000 rather than the $27,305 figure included in the joint balance sheet ([12],[18]). The wife argued that the error didn’t affect the final result ([20]).
Campton J said (from [22]):
“The heart of the wife’s submission is anchored in that as identified by the High Court in De Winter and De Winter (1979) FLC 90-605, being that as the error was immaterial it did not impact upon the ultimate exercise of discretion… The contentions of the wife are not accepted. The primary judge was in error in finding that the property of the parties was $2,752,153, when it ought to have been $1,554,458, a difference of $1,197,695. The error, having the effect of increasing the value of the property of the parties by 77 per cent, permeated each intermediate and conclusory determination in the adjustment of the property of the parties. It impugned:
(a) The assessment as to whether it was just and equitable to make any orders adjusting the property of the parties emerging from the identification and valuation of the items of the property of the parties…
( … )
(b) The assessment of the contributions of the parties…
( … )
(c) The adjustments to the contributions of the parties…
( … )
[23] The error of fact was fundamentally material having a direct bearing on the reality of the ultimate result and generating a miscarriage of the exercise of the s 79 discretion.”
The orders were set aside. The matter was remitted for rehearing. Costs certificates were ordered for both parties.
Divorce – Application for special leave to the High Court is not an “appeal” for the purpose of s 55 of the Family Law Act – Wife fails in application to stay divorce order pending special leave to appeal
In Basu & Misra (No 2) [2025] FedCFamC1A 76 (2 May 2025), Austin J heard an appeal from a decision of Judge Burt in divorce proceedings.
The husband filed an application for divorce and the wife filed an objection. A divorce order was made to take effect on 7 October 2024. The wife appealed and in accordance with s 55(3)(a) of the Family Law Act, the operation of the divorce order was postponed.
The appeal was unsuccessful and the divorce order was to become operable on 8 April 2025. The wife then filed an application for special leave to appeal to the High Court and an application seeking a stay of the divorce order ([2]-[6]).
After referring to the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘FCFCA Act’), Austin J said (from [9]):
“The operation of the divorce order was postponed whilst ever there was an appeal pending from the divorce order (s 55(3)(a) of the Act)…
[10] Importantly, however, the statutory definition of ‘appeal’ does not extend to include … an ‘application for special leave to appeal’…
( … )
[13] An application for ‘leave to appeal’ to this intermediate appellate court is made pursuant to s 28 of the FCFCA Act and is governed by guideline principles directing attention to the supposed merit of the intended appeal and the private injustice… However, by contrast, an application for ‘special leave to appeal’ to the High Court of Australia is instead made pursuant to s 55(2) of the FCFCA Act and is governed by the provisions of s 35A of the Judiciary Act 1903 (Cth), directing attention primarily to the asserted public importance of the intended appeal.
[14] The filing of the application for special leave to appeal … by the wife did not, therefore, engage ss 55(3)(a) and 55(5)(a) of the Act for a second time and so the divorce order became operable at midnight on 8 April 2025…
( … )
[16] … The mandatory terms of the Act which govern when divorce orders become operable (s 55) usurp the Court’s power to stay the divorce order…”
Financial Agreement – Wife prepared non-compliant agreement based on internet searches and templates, but later said it was not binding as neither party received independent legal advice – Financial Agreement declared binding
In Whittle (No 2) [2025] FedCFamC1F 140 (6 March 2025) McGuire J heard a husband and wife’s dispute as to whether their financial agreement was binding.
The parties separated on 25 May 2021. The parties negotiated a property settlement and signed a financial agreement on 31 May 2021. In March 2023, the wife commenced property adjustment proceedings.
McGuire J said (from [29]):
“It is common ground that none of s 90G(1)(b), (c), or (ca) of the Act were satisfied and that the Financial Agreement is not therefore prima facie binding.
( … )
[31] The wife says that the requirement for persons to obtain independent legal advice is a crucial legal safeguard given a binding financial agreement ousts the jurisdiction of the Court to make property orders.
( … )
[58] … [T]he Agreement itself and the surrounding correspondence between the parties, now in evidence, suggests the parties themselves considered the Financial Agreement to be binding following its execution…
( … )
[60] The wife is a trained and experienced professional. The evidence suggests that she initiated the use of the tool of the financial agreement in that she searched the Internet… to obtain a template. She completed the drafts…
( … )
[63] The evidence is clear that the terms of the Agreement of 31 May 2021 have been fully put into effect and specifically in respect of the benefits accruing to the wife …
( … )
[66] I am satisfied that by execution of the Agreement and … the wording of the Recitals and Operative Provisions of the Agreement, both parties considered the Agreement to be ‘full and final’ and ‘binding’…
( … )
[69] … I exercise my discretion to declare the Financial Agreement binding in finding on the balance of probabilities that it was the intention of the parties to finally settle their financial matters by agreement… I will make the declaration accordingly.”
The agreement was declared binding. Directions were made for written submissions as to costs.
