Michelle McMahon

Garram v Garram [2019] FamCAFC 239

FAMILY LAW – APPEAL – PARENTING – Appeal against interim parenting orders requiring the children’s care to change from the mother to the father – Where the children’s views were considered – Where the children’s views were not the only consideration – Where sufficient weight was given to relevant s 60 CC considerations – Where no miscarriage of justice occurred – Appeal dismissed – Mother to pay the father ’s costs of the appeal in a fixed sum.

Michelle McMahon represented the defendant.

The reasons for the decision can be found here.

MASSON AND PARSONS & ORS [2019] HCA 21

Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction.

Family law – Parenting orders – Meaning of "parent" – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures – Where appellant provided semen to first respondent to conceive child with belief that he was fathering child – Where appellant had ongoing role in child's financial support, health, education and general welfare and enjoyed extremely close and secure attachment relationship with child – Where first respondent later in de facto relationship with second respondent – Where appellant found to be "parent" within ordinary meaning of word but not under s60H – Whether s60H exhaustive of persons who may qualify as "parent" of child born of artificial conception procedure – Whether "parent" used in Family Law Act according to ordinary meaning except as otherwise provided – Whether appellant is "parent" within ordinary meaning – Whether ordinary meaning of "parent" excludes "sperm donor" – Whether appellant is "sperm donor".

Constitution, s 109.
Family Law Act 1975 (Cth), ss 4, 60B, 60EA, 60G, 60H, 61D, 61DA. Judiciary Act 1903 (Cth), s 79(1).
Status of Children Act 1996 (NSW), Pt 3 Div 1.

Michelle McMahon, Dr James Stellios led by Brett Walker SC represented the first and second respondents.

Reasons for the decisions can be found here.

Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97

From the New South Wales Civil & Administrative Tribunal Appeal Panel:

COSTS – NCAT Internal appeal – amount in issue in excess of $30,000 – r 38A of the Civil and Administrative Tribunal Rules 2014 (NSW) and cl 20(4) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) – no issue of principle

COSTS – general rule that costs follow the event – application of the rule and discretion – no issue of principle

Michelle McMahon appeared for Adam Rekrut and Sandra Scott.

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Wickham & Arnett [2018] FCCA 80

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From the Federal Circuit Court of Australia:

FAMILY LAW – Parenting – Twins aged 7 – one twin currently spending three hours per fortnight with the father; the other refusing to do so – father seeking orders for the children to spend time with him each alternate weekend and for half of the school holidays – mother seeking a no time order – where the mother alleges that the father perpetrated severe coercive and controlling family violence during and after the parties relationship which included hitting and pushing her, grabbing her by the throat, spitting on her, verbally abusing and threatening to kill her, damaging property, and taking or threatening to take the children in order to coerce her into agreeing to his demands including a demand to drop an ADVO application – where the mother agreed to the father spending time with the children for three years after the final separation but ended time soon after the children told her that the father had assaulted his current partner – where the father denies assaulting his current partner – where the father made some limited admissions about being violent to the mother but otherwise denied the mother’s allegations – where the father blamed his behaviour on the mother allegedly having mental health issues – where the court accepts the mother’s evidence and considers that there is an unacceptable risk of the children being exposed to family violence in the father’s unsupervised care - Independent Children’s Lawyer agreeing but proposing an order for long term supervised time – no benefit to the children in such an order – order made that the children spend no time with and have no communication with the father.

Michelle McMahon appeared for the Independent Children's Lawyer.

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Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546

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From the Supreme Court of New South Wales:

BUILDING AND CONSTRUCTION – Home Building Act 1989 – Statutory warranties – Breach – Calculation of damages for cost of rectification of defects – Calculation of delay costs
CONSUMER LAW – Australian Consumer Law s 18 – Misleading or deceptive conduct – Whether defendants made representations – Whether representations were misleading or deceptive – Whether plaintiffs relied on representations
CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether plaintiff entitled to costs of rectifying defects in building or cost of demolition and rebuild
CONTRACTS – Building and construction – Formation – Whether first defendant entered into contract with plaintiffs – Whether contract varied by agreement
CONTRACTS – Remedies – Damages – Remoteness of damage – Whether plaintiff’s impecuniosity must be taken into account in determining what loss is reasonably foreseeable
CONTRACTS – Termination of contract – Repudiation – Whether first defendant repudiated contract – Whether plaintiffs accepted repudiation
NEGLIGENCE – Duty of care – Breach – Whether third defendant breached duty of care in issuing construction certificates – Whether plaintiffs suffered loss as consequence of defendants’ breach

Michelle McMahon was led by Andrew Pickles SC for the plaintiffs.

Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2017] NSWCATAP 187

From the NSW Civil & Administrative Tribunal:

APPEAL – whether leave to appeal should be granted – whether Tribunal below failed to give adequate reasons – whether Tribunal below failed to consider claims – whether no evidence to support findings made below
  
EXTENSION OF TIME – whether extension of time needed – application of Civil and Administrative Rules 2014 (NSW) rr 6 and 13 and Interpretation Act 1987 (NSW) s 76 – whether extension of time should be granted

Michelle McMahon appeared for Adam Rekrut and Sandra Scott.

Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25

In the NSW Civil and Administrative Tribunal Appeal Panel  -

COSTS – whether amount claimed or in dispute in proceedings more than $30,000 – whether there are any “special circumstances” to warrant an award of costs – amount claimed or in dispute not more than $30,000 – no special circumstances – costs not awarded

Michelle McMahon appeared for Tenants’ Union New South Wales.

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Allen v TriCare (Hastings) Ltd [2016] NSWCATAP 216

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RESIDENTIAL PARKS – Residential Parks Act – whether object in s 130A(1) operates as a jurisdictional fact – object in s 130A(1) does not establish a jurisdictional fact or the fact was satisfied in this case

RESIDENTIAL PARKS – Residential Parks Act – whether the Tribunal may make a possession order under s 113(3A)(b) in circumstances where the resident does not agree to the sale of the dwelling – Tribunal may make an order for possession where resident does not agree

RESIDENTIAL PARKS – Residential Parks Act – whether valuation under s 130A includes rights attached to site agreement – valuation is limited to the dwelling only

RESIDENTIAL LAND LEASE COMMUNITIES – Residential (Land Lease) Communities Act 2013 – operation of transitional provisions

EVIDENCE – expert evidence – approach to expert evidence when not bound by rules of evidence – expert evidence must provide a satisfactory basis for Tribunal’s findings – question of acceptability of expert evidence in Tribunal one of weight not admissibility

Michelle McMahon appeared for the appellants

Smyth & McDonald v Mason & Mason Investments Pty Ltd t/as House Logic Solutions [2016] NSWCATCD 68

HOME BUILDING – unlicensed contractor – company in administration – proceedings stayed against company – sole director of company joined in personal capacity – misleading and deceptive conduct by sole director

Michelle McMahon appeared for the homeowners

 

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Hacienda Caravan Park Pty Ltd v Denley [2016] NSWCATAP 23

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ADMINISTRATIVE LAW - Appeal Residential Parks Act- residential tenancy agreement, jurisdiction to determine rent dispute - Reasons- Adequacy of reasons.

LEGISLATION - Civil and Administrative Tribunal Act, 2013 - Civil and Administrative Tribunal Rules, 2014, Holiday Parks (Long-term Casual Occupation) Act, 2002 - Residential Parks Act, 1998.

Michelle McMahon appeared for the successful respondent.

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Thompson v Chapman [2016] NSWCATAP 6

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HOME BUILDING - Appeal - Costs- Power to award costs in building claims under the Consumer Trader and Tenancy Tribunal Act and the Civil and Administrative Tribunal Act, general discretion, entitlement to costs where “indulgence” sought by successful applicant, relevance of s94(1A) application to exercise of discretion.

LEGISLATION: Home Building Act 1989 - Civil Procedure Act, 2005 - Consumer, Trader and Tenancy Tribunal Act 2001 - Consumer, Trader and Tenancy Tribunal Regulation 2002 - Civil and Administrative Tribunal Rules, 2014 - Conveyancing Act 1919.

Michelle McMahon appeared for the successful respondent.

Liability limited by a scheme approved under Professional Standards Legislation.