O’Neill and O’Neill

The Family Court of Australia heard an application by Ms O’Neill (the wife) for spouse maintenance against Mr O’Neill (the husband). The wife sought $2,000 per week in urgent spouse maintenance, alongside other pending property matters. The husband sought the dismissal of the wife's maintenance application.

The court was required to determine whether the wife had established a need for spouse maintenance and, if so, whether the husband had the capacity to pay it. This involved assessing the wife's ability to support herself, considering factors such as her care of children, age, and any other adequate reasons, in light of relevant matters under section 75(2) of the *Family Law Act 1975* (Cth). Crucially, the court also had to consider the husband's ability to pay, which required an examination of his income and unavoidable expenses.

The court found that the wife had demonstrated a need for spouse maintenance, acknowledging her low prospects for paid employment due to a prolonged absence from the workforce and her current precarious financial situation, including recent eviction from her home. The husband conceded this need. However, the court applied the principles from *Curnow & Curnow*, which stipulate that a liability to pay maintenance only arises if the payer is reasonably able to do so after meeting their own unavoidable expenses. Despite the husband's income of approximately $130,000 per year, the court found that his expenses, including accommodation and living costs, were largely unchallenged by the wife. Based on the evidence presented, the court was not satisfied that the husband had the capacity to pay spouse maintenance.

Consequently, the wife's application for spouse maintenance was dismissed.