Gitarro and Gitarro and Ors - [2008] FamCA 358

FAMILY COURT OF AUSTRALIA

GITARRO & GITARRO AND ORS

[2008] FamCA 358

FAMILY LAW – RULING - course of evidence - cross-examination of witnesses - order of cross-examination - fairness and questions of forensic advantage.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

MRS GITARRO

RESPONDENT:

MR GITARRO

SECOND RESPONDENT:

G PTY LTD and
M GITARRO

FILE NUMBER:

MLF

2754

2005

DATE DELIVERED:

7 MAY 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

RULING OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

7 MAY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR LEVINE

SOLICITOR FOR THE APPLICANT:

ISSAC BROTT & CO

COUNSEL FOR THE RESPONDENT:

MR GRANT

SOLICITOR FOR THE RESPONDENT:

PEARSONS

COUNSEL FOR THE INTERVENOR:

MR WOOD

SOLICITOR FOR THE SECOND RESPONDENT:

GLEZER LANTERI & ASSOCIATES

Orders

That for the purposes of cross-examination of the husband, counsel for the wife cross-examine first.

IT IS NOTED that publication of this judgment under the pseudonym Gitarro & Gitarro and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 2754 of 2005

MRS GITARRO

Applicant

And

MR GITARRO

Respondent

And

G PTY LTD and M GITARRO

Second Respondent

RULING

On 6 May 2008, I made a ruling in this trial which is into its sixth day. Mr Levine of Counsel indicated exception to my ruling and I indicated I would give written reasons. These are those reasons.
The wife is the applicant in the proceedings. The husband is the first respondent and his brother is the second respondent. The brother was joined as a result of orders that I made in 2007.
It would be an understatement to say that the proceedings are heavily contested.
The substantive issue is whether property in the control of the husband’s brother (and/or his corporate entities) is property of the parties for the purposes of a division under s 79 of the Family Law Act 1975 (Cth) (“the Act”). Obviously, for that purpose, the brother has been joined as a party.
The wife’s case has closed. This issue for determination arose after the respondent husband had completed his evidence in chief. I invited Mr Levine on behalf of the wife to commence cross-examination of the husband and he requested that Mr Wood of Counsel on behalf of the husband’s brother go first. Mr Wood objected on the basis that he was still to ascertain what it was that his client was to meet. Mr Levine said that allowing Mr Wood to cross-examine last would give the brother an unfair forensic advantage. I ruled that there would be no departure from the order that I determined namely that the wife’s counsel cross-examine first followed by Mr Wood.
Chapter 16 of the Family Law Rules 2004 sets out that the court make any order about the conduct of a trial. That particular rule is expansive. However Rule 16.05(2) says that the court must not make an order that detracts from:
(a)the attainment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gitarro and Gitarro and Ors

Details

AGLC: Gitarro and Gitarro and Ors [2008] FamCA 358
Case: [2008] FamCA 358
Decision Date: 7 May 2008

CaseChat Overview and Summary

In *Gitarro and Gitarro and Ors*, the Family Court of Australia considered an application concerning the order of cross-examination of the husband. The wife sought to cross-examine the husband first.

The central legal issue before the Court was whether the wife should be permitted to cross-examine the husband before any other party. This involved an assessment of the appropriate procedure for the conduct of cross-examination in family law proceedings, particularly where multiple parties are involved.

The Court reasoned that in circumstances where a party seeks to cross-examine another party, and there are multiple parties to the proceeding, the Court has a discretion to determine the order of cross-examination. The Court determined that it was in the interests of justice and procedural fairness for the wife to cross-examine the husband first, likely to ensure her case was presented and tested before other parties had the opportunity to do so.

Accordingly, the Court ordered that for the purposes of cross-examination of the husband, counsel for the wife was to cross-examine first.

Orders

Orders of the court

That for the purposes of cross-examination of the husband, counsel for the wife cross-examine first.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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