Clay and Jennings & Ors

The proceedings before Austin J concerned the welfare of two children, B and C. The applicant was the biological father of B, while the second respondent was the biological father of C. The first respondent was the mother of both children. Initially, the applicant sought orders concerning only B, but the second respondent was later joined, and C became a subject of the proceedings. The NSW Department of Family and Community Services intervened and was granted interim parental responsibility for both children.

The court was required to determine the best interests of both children, particularly in relation to their living arrangements and parental responsibility. Key issues included the eldest child's relationship with his mother and the applicant, the youngest child's relationships with her mother and the second respondent, the mother's parenting capacity, and the risk of psychological harm to the eldest child from exposure to family violence. The court also considered the proposed removal of the children from the mother's care and the differing opinions of the Department, the Independent Children's Lawyer, and a single expert.

Austin J accepted the single expert's opinion that only the eldest child, B, should be removed from the mother's care, finding no appreciable risk of harm to the youngest child, C, in the mother's care. The court reasoned that B derived some benefit from his relationship with his mother but was also at risk of psychological harm from exposure to the applicant's commission of family violence against the mother. The court found it improbable that the mother could improve her parenting capacity. Consequently, the Minister for Family and Community Services was granted parental responsibility for B, with B to live with a carer directed by the Minister. B was to spend time with his mother and C on six weekends per year after an initial embargo, with specific arrangements for communication and contact. The applicant, mother, and second respondent were restrained from approaching B. For C, the mother and second respondent were granted equal shared parental responsibility, and C was to live with the mother. All parties were restrained from denigrating each other in the presence of the children and from causing or permitting corporal punishment.