Metwally v Universi

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jakobsson & Jakobsson has been approved pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).

1. By Application in an Appeal filed 19 December 2025, the applicant seeks to vary final orders made pursuant to Pt VIII of Family Law Act 1975 (Cth) ("the Act"). These reasons explain why the application will be dismissed pursuant to s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) ("the FCFCOA Act").

1. By Notice of Appeal filed 17 March 2025, the applicant sought to appeal Pt VIII orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2).
2. The applicant's appeal was heard on 7 July 2025.
3. In the event the appeal was allowed, each of the applicant and respondent sought a re-exercise of discretion. In that respect, the reasons for judgment of the Full Court record as follows:
   1. Each counsel urged the Court to re-exercise discretion rather than remit the matter for rehearing. Beyond submitting that this court should, in the exercise of its discretion, divide only the equity in the parties home as to 65 percent to the appellant and 35 percent to the respondent, the appellant made no other submission. The respondent likewise made no submissions other than upon a re-exercise this Court should make orders in the same terms as those made by the primary judge.

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1. No party sought to admit further evidence on the appeal. No aspect of the appeal has successfully demonstrated error in the factual findings of the primary judge. In the exercise of my discretion, I propose therefore to rely upon the findings of the primary judge that determined or quelled any factual controversy as they were not the subject of successful challenge on the appeal (Chan & Lee [2022] FedCFamC1A 85; (2022) FLC 94-089).

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1. I am satisfied that a just and equitable division of the parties' non superannuation property would see the respondent receiving 63 percent and the appellant receiving 37 percent.
2. The parties were agreed that the appellant should retain the Country E property. They remained apart as to what should happen to the home. While at hearing the appellant sought to retain the home, there is no evidence that he can afford to keep it and the orders made by the primary judge gave him 60 days in which to refinance it, during which time he did not. I do not propose to delay implementation of the orders further. If the appellant wants to retain the home, then he is at liberty as is any other person to purchase it.
3. Given the modest assets and the limited equity in the home, the only way of equitably dividing the parties' non-superannuation assets to give effect to 63/37 percent split is to order the sale of the home and for the net proceeds, after discharge of the mortgage and payment of the debt to O Association, to be divided as to 63 percent to the respondent and the balance to the appellant.
4. The remaining assets of the parties, excluding the home, debts, and superannuation, have a value of $126,944. The respondent's entitlement is 63 percent, being $79,974.72. The respondent has assets having a value of $28,500. To give effect to a 63/37 percent split the appellant is to pay the respondent a further $51,474.72. I will order that payment to be made within 60 days.
5. In the event that he fails to pay that amount, then it can be met in part from his 37 percent share of the net proceeds of sale, subject to such other enforcement actions as the respondent seeks to bring.

1. Relevant to the determination of this application, no party sought to submit that the pool of assets to be divided was different to that found by the primary judge nor did any party seek to adduce further evidence on the re-exercise.
2. Reasons of the Full Court and orders on the re-exercise were delivered on 1 August 2025.
3. Dissatisfied with the determination of the Full Court, the applicant sought special leave to appeal to the High Court. Special leave to appeal was refused by the High Court on 4 December 2025.
4. The affidavit of the applicant sworn 18 December 2025 in support of the Application in an Appeal contends as follows:
   1. The trial was completed at the court of first instance on 9 July 2024. At the time of the trial, the amount owed on the property at [Suburb B property] was $561,859. The amount presently owed on the property is now $532,479.31. Evidence of this is attached as Annexure A
   2. As the trial judge gave judgment for me to take over the [Suburb B property], I borrowed up to $30,000 to pay off the overdue repayments on the property in January 2025.
   3. Between the date July 2024 and December 17 2025, I have paid up to $60,525 in addition to the rental income from the property to keep the property as a family property. A detailed breakdown of how I contributed the $60,525 to stop the bank from repossessing the [Suburb B property] till date is given in the annexure B to this affidavit.
   4. There is also a tuition debt of $17,936 owed to the [P School] as unpaid tuition of our son, [X]. Evidence of this debt is attached as Annexure C.
   5. There is a total family debt of $78,461 that arose from the payments made on the mortgage and the unpaid tuition of our son which was omitted from the family liabilities in the judgment of the court.
   6. I have single handedly paid the sum of $60,525 largely from funds I borrowed from friends, and I am also being asked to single handedly pay the $17,936 tuition of our son despite the fact that I continue to pay child support to the Respondent.
   7. I no longer have a stable job or income as my job with [Q University] has come to an end and I am still in the process of finding another job.
   8. It is in the interest of justice to have a variation of the judgment of the Full Court in this matter to make an allowance for the existing family debts that were not taken into account in the judgment and orders of the Full Court given on 1st August 2025.
5. The affidavit of the applicant sworn 8 January 2026 contends as follows:
   1. The Respondent and I purchased the Property in or about 2017 as joint owners. with ownership and mortgage liability held on a 50/50 basis.
   2. We resided in the Property for approximately three years, until about November 2019, when the Property was leased to the Defence Housing Australia (DHA).
   3. Since the commencement of the lease arrangement, I have been solely responsible for meeting the mortgage repayments, including both principal and interest, and for covering any shortfall between the DHA rental income and the mortgage repayment obligations.
   4. I continue to meet these shortfall payments to date in order to prevent mortgage arrears and any risk of enforcement action by the bank.
   5. Attached and marked Annexure A are bank statements evidencing mortgage repayments made by me, clearly showing both principal and interest components,
   6. Attached and marked Annexure B are DHA rental statements showing the weekly rental payments received. These documents demonstrate the actual rental income.
   7. A summary table is included in this affidavit to highlight my personal financial contributions toward maintaining the loan and stabilising the mortgage from the completion of the trial in July 2024 till December 2025 so as to avoid the bank taking possession of the Property. The evidence provided shows I have contributed to over $60,000 in out of pocket expenses since the completion of the trial in 2024. The costs breakdown is attached as Annexure C.
   8. The outstanding school fees form part of the family liabilities but were omitted from the original list of liabilities submitted during the earlier Family Court proceedings.
   9. I have been assessed since November 2024 for child support in the amount of approximately $1,970 fortnightly. My youngest child turned l8 years old on 30 October 2025.
   10. Child support payments continued until I lost my employment on or about 21 November 2025 and 11 December 2025, which significantly affected my financial capacity. Evidence of my resignation from Both [Q University] and [R University] as attached as Annexure D.

1. Neither of the applicant's affidavits contains any explanation as to why what he now contends to be the case was not adduced at the time the Court was invited to re-exercise its discretion. Nor was any oral submission made to that effect. That was the time to adduce the evidence, and it was not done.
2. Parties are bound by the way in which they conduct their case at first instance (Metwally v University of Wollongong (1985) 60 ALR 68). A party cannot resort to the avenue of rehearing through an appeal as a cure to correct either tactical errors or inadvertence at first instance. As the High Court stated in Suttor v Gundowda Pty Ltd ([1950] HCA 35; 1950) 81 CLR 418 at 437-438, "where a point is not taken in the court below and evidence could have been given there which by any possibility could have prevented the point from succeeding it cannot be taken afterwards."
3. Either way the Court's appellate jurisdiction is invoked upon the filing of an appeal. There is and can be no appeal filed in this Court in respect of the orders made on 1 August 2025. The avenue of appeal if any was to the High Court for which special leave was refused.
4. The Court's power in its original jurisdiction to vary orders in the manner sought by the applicant exists only within the terms of s 79A of the Act, assuming the applicant's case can be properly brought within the subsections, which on the material set out in the affidavit is doubtful.
5. The Application in an Appeal is incompetent and an abuse of process and will be dismissed.
6. The respondent sought in a Response orders by way of enforcement. That cannot be determined by the Full Court and should be filed in the Federal Circuit and Family Court of Australia (Division 2). The Response will be dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell.