(tho95011)
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

JA 6/95 

BETWEEN:

AMANDA BAILEY
		Appellant

AND:

GEORGE BARKER
		Respondent

CORAM:  THOMAS J

	REASONS FOR DECISION

	(Delivered 26 July 1995)

	This is an appeal by Amanda Bailey who is the natural mother of the child Melodie Bailey against certain orders made on 22 November 1994 by a Magistrate sitting as the Family Matters Court at Darwin, whereby he ordered as follows:

	"1.	I am satisfied that Melodie Bailey is a "child in need of care" pursuant to s43(4)(a) of the Community Welfare Act, and order that the sole guardianship rights be transferred to the Minister for Health and Community Services for a period of 3 years.

	2.	That Amanda Bailey and the extended family of the child (Melodie Bailey) have access to the child at the discretion of the Minister as soon as possible, as often as possible, for as long as possible so that the interests and needs of Melodie Bailey be properly met.

	3.	Review of the order in 12 months."

	The grounds of such appeal as stated in Amended Notice of Appeal filed 5 April 1995 are:

	1.	The Magistrate erred in determining that Melodie Bailey should be placed in the sole guardianship of the Minister on the ground that Amanda Bailey was unable to provide for Melodie without support.

	2.	The Magistrate erred in law in admitting certain evidence into the proceedings, namely, psychological assessment of Amanda Bailey by:

		.	Anne Harding 1981
		.	Anne Harding 1983
		.	Catherine McGee 30 May 1990
		.	Andrew Gagalowicz 29 July 1983

	3.	The Magistrate did not give proper weight or sufficient regard to the evidence of lack of appropriate accommodation for Amanda Bailey and the inappropriate intervention of Child and Family Protective Services.

	4.	The Magistrate erred in not making a ruling on the submission that the Child and Family Protective Services had discriminated against Amanda Bailey.

	5.	The Magistrate did not give sufficient weight to evidence that Amanda Bailey has improved her parenting skills and has the capacity for further improvement.

	On 4 April 1995, counsel for the appellant sought leave to amend the Notice of Appeal filed 20 December 1994.  This leave was granted. I note the Notice of Appeal filed the following day 5 April 1995 as set out above, contains a discrepancy between the document filed on 5 April 1995 and the leave sought on 4 April 1995 in respect of Ground 2.

	In the application made on 4 April 1994, counsel sought and was granted leave to delete the words "in law" as they appear in line 1 of Ground 2 (t/p 2.3).  The amended Notice of Appeal filed on 5 April 1995 still contains the words "in law".
	
	The Family Matters Court was established under s24 of the Community Welfare Act.

	The procedure on appeal is set out in s50 of the Community Welfare Act which states:

	"	(1)	The Minister or the parents, or the persons who were, immediately before the order, the guardians or persons having the custody of a child, or any other person who has an interest in the welfare of, or acting on behalf of and at the request of, the child in relation to whom an order under section 43(4) or 49 was made, may appeal to the Supreme Court against the order made or as varied under this Part.

	(2)	The provisions of the Justices Act relating to appeals from a Court of Summary Jurisdiction shall apply, so far as they are applicable, to an appeal under subsection (1)."

	The relevant provision of the Justices Act is s163(1) which states:

	"A party to proceedings before the Court may appeal to the Supreme Court from a conviction, order, or adjudication of the Court (including a conviction of a minor indictable offence but not including an order dismissing a complaint of an offence), on a ground which involves -

(a)	sentence; or

(b)	an error or mistake, on the part of the Justices whose decision is appealed against, on a matter or question of fact alone, or a matter or question of law alone, or a matter or question of both fact and law,

	as hereinafter provided, in every case, unless some Special Act expressly declares that such a conviction, order, or adjudication shall be final or otherwise expressly prohibits an appeal against it."

	The appeal proceeded as a re-hearing, Messel v Davern 9 NTR 21. It is not an appeal in the strict sense and not a hearing de novo.  It is in effect ". . . a new trial of the issue raised by the Notice of Appeal using the evidence in the Court below with a discretion to receive further evidence."

	The Court's function is to determine the rights of the parties by reference to the circumstances as they existed at the conclusion of the appeal, by reference to the law as it then existed and to give such judgment as ought to be given if the case at that time came before the court of first instance.

The Scheme of the Community Welfare Act

1.	In order to make the order placing Melodie Bailey in the sole guardianship of the Minister for Health and Community Services, it was necessary for the learned Stipendiary Magistrate to make a finding, as he did, that the child, Melodie Bailey, was in need of care pursuant to s43(4)(a).

2.	The court could only make the order referred to above "where it is satisfied that an order declaring the child to be in need of care would ensure that the standard of care of the child as a result of that order would be significantly higher than the standard presently maintained in respect of the child, s43(2).

3.	It is also relevant to note the provisions of s43(3) which states:

		"For the purpose of subsection (2), the Court shall, in assessing the standard of care of the child, consider the social and cultural standards of the community in which the parents, guardians or persons having the custody of the child (and, where appropriate, the extended family of the child) reside or with which they maintain social and cultural ties."

4.	Where the court makes a declaration under s43(4)(a) as was done in this case, the court may include "subject to subsection (7) a direction to transfer the sole rights in relation to the guardianship of the child to the Minister or such other person, for such period, not extending beyond the eighteenth birthday of the child, as it thinks fit (including a direction relating to access of the parent, and such other persons as the court thinks fit, to the child), s43(5)(d).

5.	Under s43(7)(a) no order granting sole guardianship to the Minister could be made unless the court was satisfied that "... no other order that it may make will adequately provide for the welfare of the child".

6.	Section 4(2) of the Act states, inter alia, a child is in need of care, where, inter alia, "... the parents, guardian, or the person having the custody of the child are or is unwilling or unable to maintain the child."

Factual Background
	Amanda Bailey, the appellant and mother of the child who is the subject of this dispute, was born on 27 July 1961.  She is 33 years old.  Amanda Bailey was removed from the care of her mother Ms Edna Fuller when she was two years old.  She was taken from Katherine to Darwin, whereupon she was placed in the Retta Dixon home.  She lived at this institution from 1969 to 1981; until she was 20 years old.  

	In 1982, Amanda Bailey gave birth to a son, Simon Bailey.  Simon Bailey has been placed in long-term foster care until the age of 17 years.

	In 1989, Amanda Bailey moved from Darwin and settled in South Australia.  Melodie Bailey was born on 6 February 1991.  South Australian Family and Community Services became involved with Ms Bailey and Melodie in May 1991 as there were concerns about Ms Bailey's ability to care for Melodie.  Over the next few months, in addition to the South Australian Family and Community Services, other organisations, which included Teen Challenge, Catholic Services - Catherine House, and a Family Support Worker, assisted Ms Bailey.  In 1992, Ms Bailey returned to Darwin with Melodie in order to re-establish contact with Simon Bailey.

	A chronology of the contact between Amanda Bailey and the Department of Health and Community Services with relevant orders made by the Family Matters Court in respect of Melodie Bailey are as follows:

"27/3/93		Agreement between AMANDA BAILEY and the Department of Health and community Services pursuant to s62 of the Community Welfare Act with respect to the care of MELODIE BAILEY.

29/3/93		Agreement revoked by AMANDA BAILEY.

29/3/93		"Holding Order" granted under the Community Welfare Act with respect to MELODIE BAILEY.

28/4/93		Consent Order that MELODIE BAILEY be placed under the joint guardianship of the Minister for health and community Services and AMANDA BAILEY.

1/12/93		Review by Family Matters Court.  Joint guardianship order to continue (by consent).

29/8/94		Application by AMANDA BAILEY for review of the Order, seeking periods of defined access, refused by Family Matters Court.

22/11/94		Order by Family Matters Court that sole rights of guardianship of MELODIE BAILEY be transferred to the Minister for Health and Community Services."

Findings on Grounds of Appeal
	The following is an extract of a report prepared by the Child and Family Protective Services dated 29 August 1994 (Exhibit 2) in this appeal.  

	"CONCLUSION

	For the past three years extensive efforts had been made by this Department in conjunction with twenty five Darwin agencies to assist Amanda Bailey to provide an appropriate level of care for her daughter.  It is clear that Amanda Bailey has been and is unable to provide this standard of care.  Ms Bailey has not demonstrated an ability to be a joint guardian of the child.  Despite her generally agreeable nature she is unable to conceptualize and make informed decisions in regard to the long term welfare of the child.  When decisions and agreements have been made with Ms Bailey she has often been unwilling and unable to carry them through.  It is essential that the care needs of the child are met.

	Most significantly Ms Bailey is unable to understand the need for, or provide, adequate supervision and a safe environment for Melodie.

	Some of the risk factors to the child which have been identified through casework contacts are:

	*Ms Bailey's alcohol  consumption.
	*Ms Bailey's inability to meet the basic care needs of Melodie.
	*Ms Bailey's lack of parenting skills.
	*Ms Bailey's inability to manage her finances.
	*Ms Bailey's lack of anger management skills.
	*Ms Bailey's lack of awareness of how her behaviour places 
	Melodie at risk of abuse.
	*Ms Bailey's inability to comprehend information presented 
	to her.
	*Ms Bailey's inability to comply with agreed upon case plans.

	While the Caseworker acknowledges the love and bond that exists between mother and daughter, the Caseworker believes that Melodie's developmental needs will not be met while in the care of her mother, denying the child the right to reach her full potential.

	It is the Caseworker's belief that Melodie requires permanency planning and it is in her best interests that she be placed with her extended family.  It is hoped that by placing Melodie within her extended immediate family, this will also facilitate Ms Bailey's increasing interaction with them building her own self-esteem and sense of belonging.  This is the expressed wish of Edna Bailey, Amanda Bailey's mother.

	On the 25 August 1994, a family meeting was held in Palmerston with Ms Bailey's extended family conducted by the Caseworker, Child and Family Protective Services and Charlie King, Aboriginal Community Care Worker, Casuarina Community Care Centre.  Present at the meeting were Edna Bailey, Ms Bailey's three sisters, Susan, Patricia and Maryanne, Susan's husband and their child.

	At this meeting the family's wishes were sought in relation to Melodie's long-term placement given the evidence that this Department would be submitting this Court Report.

	Edna Bailey stated that she would hold an extended family meeting in Katherine of the weekend of 27-28 August to decide if either she herself or, Angelina (Melodie's aunt 'classificatory mother') should care for Melodie.  (Genogram Attached)

	Edna Bailey pointed out that Melodie needed to be 'with her grandmothers, grandfathers, aunts and uncles' - with family and that she had to learn our ways.  Edna also pointed out that Melodie needed 'patience, time and love' to become integrated into the family.  When asked who should care for Melodie, Edna replied "me". Edna described how Amanda Bailey is not close to her but that she would like to become a part of her family and spend more time with her sisters.  Edna Bailey acknowledges the historical reasons for Ms Bailey's (Amanda's) responses.

	It is the assessment of this Department that Amanda Bailey is unable to provide an adequate standard of care for Melodie and given the historical background will be unable to do so in the near future.

	It is also the Department's belief that a Joint Guardianship Order is no longer appropriate as Ms Bailey has consistently demonstrated her inability to make the appropriate decisions required to ensure that an adequate standard of care is maintained for the child.  Ms Bailey has not been able to demonstrate the commitment and responsibility of a Joint Guardian and therefore the following recommendation is made in relation to the child's long term care.

	RECOMMENDATION

	It is respectfully recommended that the Order made by Mr John Allan Lowndes SM on 1 July 1994 be varied to direct the transfer of the sole rights in relation to the guardianship of the child to the Minister for the Department of Health and Community Services for a period of 5 years."

	On 21-22 November 1994, a Progress Report was prepared by the Child and Family Protective Services (Exhibit 3) in this appeal. The following is an extract from the conclusion in this report.

	"While it is acknowledged that limited resources are available in Darwin region to develop and conduct skills based training programs for supporting parents with an intellectual ability, Ms Bailey has, since Child and Family Protective Services involvement, had 23 Agencies involved in providing support. Top End Advocacy Service and Challenging Behaviours support unit are working with both government and non-government agencies in attempting to address the shortfall in sustainable service provision.

	There are a number of options for Melodie in relation to long term placement with extended family.  On 28 July 1994, (Folio 7/67), Amanda Bailey attended Child and Family Protective Services at her own volition.  Ms Bailey has stated that Melodie could be placed with an 'aunt'.  One sister, Angelina (D.O.B: 02 February 1968) lives at Hodgson Downs with her husband and three small children. They have their own home in the community (country recently won back in a Land Claim Hearing).  Both Angelina and her husband have offered, unsolicited, to look at the option of "growing Melodie up" (Folio 7/93 - 23/08/94).

	In proceedings before the Family Matters Court and on this appeal from the decision of the Family Matters Court, Amanda Bailey, the mother of the child, has the right to be heard J v Lieschke & Ors (1987) 162 CLR 447.

	The court will start with a strong presumption that it is in the interests of a child to stay with its natural parents, if they are capable of discharging the responsibilities of parenthood to a degree that can be described as even adequate, Beck & Anor v Phillips & Anor 6 Fam LR 837.  This statement must be tempered by the fact that the underlying consideration in cases of this nature is that the child's welfare is paramount, Danci and Danci (1984) FLC II 91-560 at 79527.

	The order as it stands places the child, Melodie Bailey, in the sole guardianship of the Minister.  Melodie is actually in the custody of her maternal grand-mother, Edna Fulton, in Katherine.  Much of Melodie's extended family also live in the Katherine region.

	I recognise the very strong ties that exist between mother and daughter and the importance of preserving such ties.

	Section 43(1)(c) of the Community Welfare Act provides, inter alia, as follows:

	"In proceedings in relation to a child in relation to whom an application under this Part is made, the Court shall consider -

(c)	the importance of maintaining and promoting the relationship between the parents, guardians or persons having the custody of the child (and, where appropriate, the extended family of the child) and the child."

	With resect to ground one of the appeal, I accept the argument put by counsel for the appellant that where a court comes to the conclusion that a parent does not have a capacity to fully discharge their responsibilities as a parent without assistance or support, it is not automatically in the best interests of the child to terminate the relationship of guardianship between parent and child.  I do not accept the submission by counsel for the appellant that the learned Stipendiary Magistrate came to the conclusion that because Amanda Bailey could not discharge her responsibilities as a mother without assistance and support, then sole guardianship of Melodie Bailey should automatically be transferred to the Minister.  On a reading of the whole of the Magistrate's Reasons for Decision, he acknowledged that there was evidence from caseworkers as to the improvements demonstrated in recent weeks by Amanda Bailey in caring for Melodie.  The reasons for decision also refer to evidence that was given of inappropriate intervention. The learned Stipendiary Magistrate weighed these considerations with the history of the relationship between Amanda Bailey and Melodie Bailey over the previous 19 months.  He accepted the importance of making orders that would bring some stability into the life of Melodie Bailey.  The learned Stipendiary Magistrate also made findings based on the evidence that the order for joint guardianship between Amanda Bailey and the Minister had failed and was not in the best interests of the welfare of the child.

	I refer to the following extracts from the progress report provided by Child and Family Protective Services 22/11/94 (Exhibit 3 on the appeal).

	"It is the caseworkers belief that Amanda Bailey is unable to maintain her child pursuant to Section 4(2)(b) of the Community Welfare Act 1983.  She is unable to sustain an adequate level of care to ensure that her child is not at substantial risk of Maltreatment as defined by Sections 4(3)(a), 4(3)(c) and 4(3)(d) of the Community Welfare Act.

	While it is acknowledged that defining adequate parenting is difficult, the United Nations Convention of the Rights of the Child outlines minimum needs of children while defining the parents role in meeting these needs.  The Court Report of 29 August 1994 details areas of health (physical, mental, spiritual), shelter, nutrition, right to protection and safety concerns."

	I am not persuaded the learned Stipendiary Magistrate erred in his conclusions.  In my opinion, the appellant has failed to establish ground one of this appeal.
  
	With respect to ground two, I do not accept the appellant's submission that the Magistrate erred in law or alternatively that the magistrate erred in admitting certain evidence into the proceedings, namely psychological assessment of Amanda Bailey by:
	.	Anne Harding 1981
	.	Anne Harding 1983
	.	Catherine McGee 30 May 1990
	.	Andrew Gagalowicz 29 July 1983.

These reports substantially deal with an assessment of Amanda Bailey's intellectual limitations and skill development. 

	I accept the respondent's submission that the Magistrate was entitled to view the reports and to give such reports due weight.

	Section 39(2) of the Community Welfare Act provides:

	"In hearing an application under this Part the Court is not bound by the rules of evidence but may inform itself on any matters it thinks fit."

	Section 40 of the Community Welfare Act provides:

	"In proceedings under this Part, the Court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted."

	The appellant's concern was that these reports were remote in time and irrelevant to the issue before the learned Stipendiary Magistrate.  The reports do not deal with Amanda Bailey's conduct towards Melodie and their relationship.

	Counsel for the appellant drew my attention to the following extract from a decision of Kearney J in Supreme Court No 94 of 1994, unreported, Jim Bayram, Fidel Bayram, Baywood Nominees Pty Ltd and Baywood Electrical Pty Ltd v Chris Benton trading as Digital Dynatronics Australia at p15.

	"The importance of the right to cross-examine is heightened by the provision in s12 of the Small Claims Act that the rules of evidence do not bind the Court; see the observation by Evatt J in R v War Pensions Entitlement Tribunal, ex p. Bott (1933) 50 CLR 228 at p256 (p23).  As was pointed out in Interstate Commerce Commission v Louisville and Nashville Railroad Coy 227 U.S. 88 (1913) at p93:-

		'- - - the more liberal the practice in admitting testimony, the more imperative the obligation to preserve the essential rules of evidence by which rights are asserted or defended.   - - - All parties must be fully apprised of the evidence submitted or to be considered, and must be given opportunity to cross-examine witnesses, to inspect documents and to offer evidence in explanation or rebuttal.  In no other way can a party maintain its rights or make its defense.'

	A proceeding so conducted as not to accord these procedural rights to the parties is conducted unfairly in terms of s19(4)(b), because it does not accord with what the 'audi alteram partem' principle of natural justice requires."

	I accept the principle expressed by Kearney J and that the principle is applicable in this matter to ensure natural justice and procedural fairness.  However, I consider the learned Stipendiary Magistrate was entitled to appraise himself of the contents of those reports and to look at the whole history of Amanda Bailey.  I note in his Reasons for Decision the learned Stipendiary Magistrate made specific reference to an assessment by Ms Jan Howells, Psychologist with the Aged and Disability Services, in a report dated 13 April 1993 (Exhibit 5) in this appeal.  The Magistrate made specific references to Ms Howells' conclusion and recommendations, which were:

	"Conclusion and recommendations

	I believe Amanda is capable of learning strategies which will assist her to deal with her anger and frustration in less destructive ways as long as the training is experiential, concrete, familiar, and directly associated with her current situation.  However, given Amanda's intellectual disability, it is highly unlikely that she will be able to attend to the social, emotional and intellectual needs of her growing child in the long term.

	Notwithstanding the obvious emotional bond between mother and daughter, the risk of further abuse is very real.  I recommend that Amanda be placed as quickly as possible in a quiet, stable environment where she can receive support, encouragement, and positive role modelling whilst undergoing parenting skills training.  It is highly desirable that mother and daughter have regular contact under constant supervision so Amanda can have an opportunity to practice and demonstrate her new skills within meaningful contexts."

	The Magistrate also made specific reference to the 
Progress Report from Child and Family Protective Services dated 21-22 November 1994.  A reading of the learned Magistrate's decision reveals he had regard to a whole range of reports, assessments and oral evidence. I do not consider the findings made by the learned Stipendiary Magistrate indicate he placed undue weight on the four psychological reports which are the subject of this ground of appeal.  The Magistrate in admitting the reports, noted the four psychological reports objected to were of limited probative value and of limited assistance, t/p 89.  The appellant has not, in my opinion, substantiated this ground of appeal.  

	With respect to ground three, I note the learned Stipendiary Magistrate made the following findings at p151:

	"I accept that her continuing ability, or inability, to meet the needs of Melodie cannot be said to be the sole responsibility of Amanda.

	I accept that factors such as appropriate accommodation and lack of appropriate intervention together with the number of service providers that have intervened have on occasions proved confusing and counterproductive.  I do accept that the decrease in access and the high degree of intervention has not, or may not have, from time to time, enhanced Amanda's self-esteem and her confidence in her ability to meet the needs of Melodie.

	I have taken those matters into account and, even taking them into account, I repeat the view that I have come to, that she is not able to discharge the responsibility of a parent without extensive and prolonged support."

	There was evidence before the learned Stipendiary Magistrate to support the findings.  I am not persuaded he failed to give proper weight to this evidence.  This ground of appeal is dismissed.  

	With respect to ground four, the appellant has drawn my attention to s5 of the Anti-Discrimination Act, which states at subsection (1) that:

	"For the purpose of this Act, a person (discriminator) discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a (person without a disability)."

	As was conceded by the appellant's counsel, the mother was not able without full and proper support to look after her child. The very detailed reports prepared by Child and Family Protection Services and tendered as exhibits in these proceedings, refer to the services of individual caseworkers who have provided support and assistance in the management of the child, Melodie Bailey.

	There was clearly evidence before the Magistrate on which to base his finding:

	"It is clear from the professionals' point of view and the non-professionals, that Amanda Bailey cannot, without support, effectively discharge her responsibilities at this stage of her life."  (t/p 150.9)

	I accept the submissions made by the respondent that the history with which the Magistrate was presented made it clear that despite enormous resources being made available to Amanda Bailey over the last 19 months, an amelioration of Melodie's general living conditions had not in fact occurred.

	The submission on behalf of the appellant on this point is that there is evidence of indirect discrimination.  Counsel for the appellant referred to evidence of inappropriate intervention which had contributed to the indirect discrimination.  In particular, reference was made to the evidence of Darryl Clifford Murdoch, Trudie Jean Hindge and Pauline Ralph.

	In the passage of his decision already referred to, the learned Stipendiary Magistrate does take into account the inappropriate intervention.  In my opinion, the learned Stipendiary Magistrate was not required to make any further ruling on this issue.  I do not consider the appellant has made out this ground of appeal.

	With respect to ground five, I note the evidence that Amanda Bailey had in fact improved her parenting skills was taken into account by the Magistrate:

	"I have heard evidence from a number of people that suggest that Amanda has improved and that there is potential for further improvement.  I believe the proposition - or, the submission of the Minister is encapsulated in the questions that were asked of - rhetorically, I might add - by Ms Mahoney, that - bearing in mind that history of inability, whether it be through intellectual disability, culturally or historical reasons, whatever it may be, or a combination of some or all of these - is Amanda able to cope with the growing and developmental needs of Melodie at the present time, even with the supports that have been provided over the last 19 months, and longer?  Is Amanda Bailey able to make informed decisions, demonstrate adequate insight into the child's developmental needs?  If she is not, what is the best way, within the terms of the legislation, that these basic developmental needs, growing needs, are met?"  (t/p 150-151)

	In addition, the learned Stipendiary Magistrate noted at   t/p 152.8 the improvement described by Ms Wright and Ms Scrimegour.  The learned Stipendiary Magistrate also referred to the progress report dated 21-22 November 1994 from Child and Family Protective Services at p8 which states:

	"Current Situation
	
	Currently, Melodie Bailey is exhibiting behaviours which are of considerable concern to the caseworker.  It is the caseworker's belief that these behaviours are manifestations of the protracted instability that the child has been subjected to over a two year period, largely as a result of Ms Bailey's lack of insight to meet the developmental needs of her child, despite the support she has been afforded."

	I do not accept the appellant's submission that the Magistrate did not give sufficient weight to evidence that Amanda Bailey has improved her parenting skills and has the capacity for further improvement.

	Counsel for the appellant seeks an order for joint guardianship of Melodie Bailey between the Minister for Health and Community Services and Amanda Bailey with custody at the direction of the Minister.

	I agree with the submission made by counsel for the appellant that to make an order placing the child in the sole custody of the Minister is an order of last resort and only to be made if there is no other order that may be made that will adequately provide for the welfare of the child.

	A reading of his Reasons for Decision demonstrates the learned Stipendiary Magistrate was very aware of this; he stated, inter alia:

	"I do not believe that a continuation of the joint guardianship will adequately provide for the welfare of the child.  The last 19 months is testimony to its failure ...

	I believe the degree of stability which is now important is recognised by Ms Dill in that report and will be achieved by placing the child with the extended family.  However, the reason why I place the sole guardianship with the Minister is that there is the possibility, as has been demonstrated over the last 19 months, that, if I was to make it otherwise, Amanda may undermine, 'may' undermine the plans that have been implemented.

	If she was to be the joint guardian, she would have a legal right to insist upon custody, day to day care and so forth, and at this stage I don't believe that is appropriate.  I do not believe that the interests of the child would be adequately provided for if I was to allow that to continue.  This is a difficult case, and I have to say I have reached that conclusion carefully considering the needs of Amanda and the submissions made by Ms Halliday."   (t/p 154-155)

	Ground five of this appeal is also dismissed.	

	For the reasons stated, I am not satisfied that the appellant has made out any of the grounds of appeal.  Accordingly, the appeal is dismissed and the orders of the learned Stipendiary Magistrate made on 22 November 1994 are confirmed.
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