Drawdowns on mortgage for child support and legal fees added back
- The third position however is more disconcerting. Disclosure by the applicant of the details of his drawdowns that increased the mortgage, and the use to which they were put, was not adequately explained until the hearing. He had a number of opportunities including through orders of the court in 2017 for comprehensive disclosure. I find that for whatever reason, the respondent was not told about this increased indebtedness as she should have been, and the failure to make proper disclosure can only rest with the applicant.
- The increase in the mortgage totalled $485,143. The present debt is $1.58 million. On a house which has an agreed value of $2.175 million, $485,000 cannot be ignored.
- The explanation for the use of the money now seems clear. It went towards the interest only payments on the mortgage, legal fees and child support. To ignore that sum or any portion of it, would effectively mean that the orders of 2015 in relation to the applicant’s obligation to pay the mortgage are ignored. To ignore it would also mean that the respondent was significantly if not entirely, paying the child support for the children. Counsel for the applicant conceded that $193,000 of that sum had to be “added back” because it went to legal fees. I do not stay to consider the question of how the lawyers who were the recipients of those funds on a regular basis did not question their receipt in circumstances where they were also preparing financial statements. It was not an issue raised by the parties and thus not a problem requiring any further attention.
- Suffice to say, I consider the critical question is whether or not the income stream of the applicant ought to have been sufficient to enable him to satisfy his own living expenses together with the obligations that he had consented to in the orders of September 2015. For the reasons that follow, I find he had sufficient income to meet his obligation.
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Queensland / New South Wales / Victoria