Divorce Café

Spousal Maintenance - financial support after a separation with legal legend Vivienne Crawshaw KC

March 09, 2023 Henderson Reeves Lawyers
Spousal Maintenance - financial support after a separation with legal legend Vivienne Crawshaw KC
Divorce Café
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Divorce Café
Spousal Maintenance - financial support after a separation with legal legend Vivienne Crawshaw KC
Mar 09, 2023
Henderson Reeves Lawyers

In this episode we talk to our hero Vivienne Crawshaw (King's Counsel) about her epic battle in the case of McQueen v Penn - at the time the highest maintenance award ever made in New Zealand - a game changer amongst other things because it made legal fees a legitimate part of a spousal maintenance claim.

Vivienne gives a master class in spousal maintenance, why court room etiquette matters, and what it takes to be a great lawyer.

Divorce Cafe aims to demystify, detangle and (hopefully) detox the legal process that follows a separation or divorce in New Zealand with the experts in the relationship property area.

Lawyers and friends Taina Henderson and Shelley Funnell have tapped into their network and bring you smart and funny interviews with top lawyers and experts about their biggest cases, the law, and what you need to know to get through a separation in NZ.

Watch here: Divorce Cafe: Spousal Maintenance - financial support after a separation - YouTube

Read the article: Beginner's Guide to Spousal Maintenance


Taina Henderson - Henderson Reeves (hendersonreeveslawyers.co.nz)

Shelley Funnell - Henderson Reeves (hendersonreeveslawyers.co.nz)

Show Notes Transcript

In this episode we talk to our hero Vivienne Crawshaw (King's Counsel) about her epic battle in the case of McQueen v Penn - at the time the highest maintenance award ever made in New Zealand - a game changer amongst other things because it made legal fees a legitimate part of a spousal maintenance claim.

Vivienne gives a master class in spousal maintenance, why court room etiquette matters, and what it takes to be a great lawyer.

Divorce Cafe aims to demystify, detangle and (hopefully) detox the legal process that follows a separation or divorce in New Zealand with the experts in the relationship property area.

Lawyers and friends Taina Henderson and Shelley Funnell have tapped into their network and bring you smart and funny interviews with top lawyers and experts about their biggest cases, the law, and what you need to know to get through a separation in NZ.

Watch here: Divorce Cafe: Spousal Maintenance - financial support after a separation - YouTube

Read the article: Beginner's Guide to Spousal Maintenance


Taina Henderson - Henderson Reeves (hendersonreeveslawyers.co.nz)

Shelley Funnell - Henderson Reeves (hendersonreeveslawyers.co.nz)

Divorce Café – Spousal Maintenance

WELCOME to Divorce Café, the podcast where we demystify, detangle and hopefully detox the legal processes that goes on after a separation, with the EXPERTS in the relationship property world. 

Today we are talking spousal maintenance. 

 On the home team:

I’m Shelley Funnell and I’m Taina Henderson.

We are partners in law and friends in life.  We help people, work with people going through a separation to navigate what is usually a complex and bewildering process.

So Shelly is a numbers Whiz who worked in Relationship property Law until she went through a separation and experienced it from the other side of the desk. I love working in this area because it feels like important work and I want to be involved in making it better and this pod cast and the conversations we are going to have is hopefully going to be a part of that. 

So Spousal Maintenance, if you haven’t come across it before, and well even if you have it’s really important to people who have separated and suddenly lost the family income they used to rely on. 

It’s an area that used to be pretty bleak in terms of the cost of applying and the size of the awards but in recent years champions like today’s guest have gone in and kicked some butts and the tide appears to be turning, Judges are recognising they need to use their power to influence outcomes for people going through a separation and they are making some pretty significant awards in this field. 

Today’s guest was at the absolute top of our wish list for guest speakers and we are so excited to be here with her today, to me she is the Captain Marvel of the Family Court because of the cases she has fought, the seminars I’ve seen her give and for her collegiality and professional decency including being immensely helpful to me several times –thank you.  

She is fresh from running her client’s appeal to the Supreme Court and she is right at this moment awaiting a decision which is going to be pretty exciting for a lot of RP practitioners, that’s in the case of Bell and Sutton and I am hoping we are going to be able to talk and do another Pod Cast about that. 

But rest assured I am sure Viv Crashaw would not be boasting, Viv Crashaw is a highly respected practitioner and a Kings Council since 2018 (which is the legal professions version of a Jedi) – not that they allowed girls to be Jedi’s but anyway, the legal world knows her as a consummate professional, an expert in the field of busting and defending Trusts and for her significant body of work in Spousal Maintenance which is why we have invited her here today. 

So Viv Crashaw KC welcome to Divorce Café 

Thank you very much Taina 

And Shelley is going to take you through the next section. 

Ok so before we get into the meatier stuff in our first segment we like to have our very distinguished guest pick a random question from the bucket, I apologise in advance because half of the questions are Taina thoughtful contemplations of conditions and the other half were made up by me soooo...

This is my first challenge, this is interesting. 

Do you want to read it out to us? 

Yes, about now thousands of law students will be celebrating or commiserating over their Summer Clerk interviews.  Thinking about your journey to where you are now what advice would you give to those students? 

Run. (Laughter) 

No, not at all, I would suggest that where they are placed is probably less important than who they are placed with really and so having a really good mentor that they can work with and somebody who is really good at what they do be that litigation or commercial or whatever that might be is really important. I think the big firms have got better capacity to train people, and training is just so important, my first job that was luckily in a big firm my letters were covered in red pen, I remember I could barely read them but even just letter writing is a really important skill. 

I even followed the partners who I was working for around Court and saw how they appeared in court and for the first few months I was basically their lackey and carrying everything and helping as much as I could and that was enormously helpful, if you’re going to be in litigation get a job where you can get into court that will be very helpful to them so that’s what I’d say to them. 

You will also know from talking to other people who have worked in various firms who’s good and who isn’t and do listen up as it does make a big difference 

And I think – I’m not too sure if you had a straight process as you went straight to a bigger firm but just because you didn’t get the summer clerking job doesn’t mean you have to give up Law School.  

Especially if you can’t do that and working in different provinces in New Zealand is amazingly helpful in terms of broadness of experience you will get 

Mmmm what you are thrown into straight away

And some really good work there so don’t feel disappointed about that. 

So the next section is called the basics

I never like to feel silly on a podcast so we supply people with that you need to know to take part in the conversation and that is “the basics” and today we are lucky enough to have Viv is going to do a tight 5 but it can be as long a 5 as you like, but your goal is to summarise what Spousal Maintenance is. 

I guess I can start by saying what is isn’t and it isn’t Child Support, so Child Support is a statutory right for the primary caregiver, if there is one, to obtain assistance for the child from the liable parent, that’s the paying parent. So it [spousal maintenance] isn’t a payment for cost associated with children. 

It’s a payment for the spouse but when we think of spousal maintenance we often think of wives or husbands but you don’t have to have been married to be entitled to spousal maintenance so on the ending of a relationship one of the parties be that of they, I’ll call them the wife or the husband just loosely even though we are talking about de facto relationships too maybe in a position where they just can’t support themselves even with the payment of child support so to the extent they can’t support themselves and that is related in some way to the way the relationship transpired they are entitled to really what you might call a top up payments. So what the legislation talks about is what their reasonable needs are and one parties’ reasonable needs in some circumstance might be are going to be really different to somebody who might live in say Remuera so we’ve got to look at the comparison isn’t between the average kiwi living in Aoteroa the comparison is what was the standard of living during this relationship and that’s in itself a ground for maintenance to be paid in some circumstances. 

Do you think…is that to avoid the situation where parties come out of a relationship and one of them has a sharp drop in their standard living and the kids are living with them some of the time?

Yeah, so in a classic division of functions where one party has been able to enhance their career during the relationship, that sounds like a privilege, but It can also be a burden, they might have to get up at 5.30 in the morning and can have a long commute and not get back at home until the evening and the spouse might get the children off to school and have a bit more leisure time than the career earning party but the career earning party then at the end of a relationship still has a career to turn to and the ability to be usually self-supporting where the person who has sacrificed their career is in a really difficult financial position, they have not been financially independent and they are not going to suddenly become financial independent.

Is it like we hear in the American movies and it goes on forever until you can marry them off or is it intended to cover...?

Yes so how long is a piece of string? – In the UK you can get maintenance for life, we are not like that in NZ but neither are we parsimonious as some judges initially thought before the latest legal developments, there is a stipulation that if you do enter another de facto relationship or you marry you are no longer entitled to maintenance so that brings an end to it, so that is kind of the antediluvian idea that you’ve got another man to support you so he’s got to do it, not your former spouse

But in NZ some people talk about the 2 year cut off but in actual fact it’s not as harsh as that, after a divorce and after the ending of a de facto relationship you are under a different section and that section basically says in round terms you need to start being self-supporting but it hasn’t been interpreted in a harsh way and there are some cases for example where there are screeds of children or a disabled child where the divorced wife or in some cases the husband is unable to be self-supporting and they are still in need of spousal maintenance and their Relationship Property hasn’t been resolved  and in those cases maintenance can run on longer than the 2 year cut off it’s not a cut off as used to be considered to be the case. 

The Courts, well the judges have quite a lot of discretion don’t they in terms of what is required for justice in the particular circumstances of this case? 

Particularly at interim level, now under an interim Spousal Maintenance order its almost pure discretion though the cases are saying you still need to look at the underline qualifying criteria and now we know that interim orders can be rolled over its not a complete roll over but the court has the ability to do that without having to have a full hearing. 

Ah so that is what you found. 

That’s a case called Cooper v Pinney [2015] NZFP511 

So you know the risk with an interim Order is it only lasts 6 months so if it’s wrongly made.

Or if you are still fighting to enforce the order at the end of the 6 months. 

So if you are someone that has facials, waxing, gets their nails done in the course of the marriage they might stay at home and there is a lot of body prep, do you think you are going to get that covered in the Spousal Maintenance? 

You can actually, you really can. 

So keep doing that stuff is that the message? 

Ah I wouldn’t be that tactical!

I think the thing is if you have evidence of high a rate of expenditure and look usually it’s pretty even, it’s pretty rare that one spouse is spending on waxing and nails and hair appointments and the other spouse is sitting there being frugal, usually there will be Jet Skis bought and really expensive cycles and things like that, it will usually be pretty even handed that the couple may have been big spenders because there was a big income and so as long as the applicant has got evidence of that expenditure during the marriage then that will be an item of expenditure that is usually allowed in a budget of maintenance. 

Unless the provider of the maintenance enters into another relationship with someone who is getting facials? 

Ah no, that’s not the disentitlement, the disentitlement is to the recipient of spousal maintenance. 

Doesn’t the court take into account that they have another partner? 

Well they take into account what other demands there are on that person as to if they are supporting someone else. But it doesn’t cancel it out in the same way.  

It usually doesn’t obviate the obligation to provide maintenance - you can’t rock up to court and say I’ve got a new lady and she’s expensive and forget the former spouse with 3 children and that she is struggling, that’s really going to go down like a cup of cold sick. 

Stuff we find interesting

Ok, so now the next section is stuff we find interesting is when we are going to move on to something that you are of course going to talk about when you are with Viv Crawshaw which is her famous case which is McQueen v Penn [in the Court of Appeal [2016] NZCA571] so I think it’s probably your most famous Spousal Maintenance case would you say? So it was an epic it was a bit of a Lord of the rings of legal cases, a series of cases and it’s a great one for examining the dynamics of a maintenance case as there are a lot of things that appear in it that I have noticed appearing in a lot of other cases through the years and it has a hell yeah ending from my perspective and we will hear whether it felt like that for you?

So we wondered whether we could talk to you about that today, you were acting for the wife, we are going to call her the wife

I was and she was the wife.

We are going to call her Ms Penn – not her real name.


And for our listeners that aren’t so familiar with it I am going to tell you the story of McQueen and Penn’s relationship and then we will throw back to Viv to tell you about what was happening in that case. 

So here are the facts that are on the public record. 

The parties met in 2000 – that was in the UK they married in 2006 they had 2 children together and they moved to NZ and in 2011 they separated, when they met he was a plastic surgeon, quite a senior plastic surgeon, she was a nurse, she started studying to be a dentist half way through the relationship but had to give that up when she had her first child.  She then stayed at home with the kids and was the primary caregiver and he continued to work full time as a surgeon and various segways in his career. The parties had a very high standard of living (I don’t know about waxing) but they had a high standard of living when they were together, he had other independent sources of income including a mother who had a trust and was very generous. He also had investment properties that returned an income.

It was normal for them to have expensive overseas holidays and had things like a paid dog walker and generally spent more than your average couple. When they separated the children were pre-schoolers from what I have seen in 2013 is when Ms Penn applied for maintenance but I will hand over to Viv, can you tell us what the issues were in that case? 

Well there didn’t appear to be a large amount of relationship property as most of the property was held in the UK so the focus was on ensuring that Ms Penn received maintenance in accordance with the statutory provisions as she actually wasn’t getting child support either she had one stage was on a benefit. 

The judge had actually said at one point that she was living hand to mouth. 

She lived in very modest circumstances and there is a description in one of the judgments about the rental property that she was in being mouldy and the draws in the kitchen not opening properly and she was living a very subsistence existence she was almost in poverty. 

And he was not probably. 

Well he was a surgeon so he was living the life a surgeon would lead but he also did have some family money and I guess that was to one side of the inequality between them but the inequality was driven by his very good income even though he was only working part time. 

And how did that litigation progress? 

Well it was very hard fought I think it was considered a bit audacious to apply for maintenance so there was an initial interim spousal maintenance and an interim distribution order made but he successfully appealed that to the High Court and it was then sent down for reconsideration in the Family Court but we just 

Do you know how that happened? It seemed pretty insane. 

I have my theories 

It felt pretty unfair at the time.

Costs were actually ordered against her which almost exceeded the amount of the award she was seeking which was a very interesting outcome so we then proceeded to the substantive hearing of the Spousal Maintenance rather than to muck around with interim maintenance, we proceeded and by that stage we were seeking past Spousal Maintenance as well as future Maintenance but obviously it wasn’t going to go on forever and I believe it was about 4 years’ worth in the end that we were seeking.  

So there was a hearing and cross examination and so on and the judge roundly found in favour of the applicant wife and ordered what I think was then and may not be any more the largest order of spousal maintenance in terms of past maintenance that had been ordered but that was actually because he hadn’t paid any and that was really interesting and that was quite a feature of the case whereas most maintenance cases there will be some maintenance paid it may not be sufficient to top up the reasonable needs but there will be some maintenance paid but here that hadn’t taken place. 

And then of course when we succeeded he appealed the decision

From the High Court? 

No from the Family Court.

He was successful in a very small margin by a small margin about $51,000 reduced to about $350,000 as a past maintenance award and then he sought leave to appeal to the Court Of Appeal the High Court’s judgements but the court of appeal resoundingly declined to leave to appeal you don’t have a right to appeal to the Court of Appeal in those circumstances, they heard argument but declined leave. 

So it was quite a litigation fiasco really.

And the High Court judge was actually pretty critical of Mr McQueen and the way he pursued his case just for a bit of context the judge said he had dragged out the litigation by contesting every fact and expense which meant that hours more needed to be spent on responding to affidavits and filing long affidavits and it meant that the case was far more expensive than it needed to have been. 

There was certainly no agreement on any points, he contested any obligation to pay her the judge actually said he was evasive in answering direct questions about his own income and expenses he denied the value of Ms Penn’s contribution to the relationship and blamed her for all his problems. 

He sounds like an absolute peach. 

He added to that trifecta with crying poor when he appeared to be living a pretty lavish lifestyle, I think he points out at one stage that his expenses were going to be $400,000.00 leaving a short fall of $147,000.00 so he couldn’t be expected to support his Ex, in saying all of that it’s really hard not to create a caricature of an evil ex right but how common in your experience is it to see this sort of approach taken? 

Well not that common so this was probably you know well outside of the bell curve as such and it was interesting because at that time the inclusion of legal fees for a spouse seeking Spousal Maintenance was not awarded - it was not de rigeur to do that. That has since changed and you’ve got to wonder… look in with that in mind with the benefit of hindsight whether that had been a risk to him that the might have actually not just paid her day to day expenses but possibly her legal costs as well because in the end she ended up on Legal Aid that might have been more of a threat because legal costs it’s not all uncommon for somebody to be awarded as much $5000 - $10,000 a month 

Or $8000 to $12,000 

Yes, so that can happen, if that had been something that was a serious threat to him perhaps he might have taken a different approach but he threw everything at the opposition to it. 

It will be interesting to see how things change. 

But then again it came out with some really interesting points which have helped litigants who have had similar applications since, so some good principals that have come through that decision. 

Well if there is one thing that a bread winner hates more you know than paying their spouse its paying their Ex Spouse’s lawyer.

That is a significant.

Yes that’s like eating a rat.


And yet it can happen 

Is it easy to get the lawyers costs now? 

It’s much easier, although it’s not a given and obviously the court has to look at a whole other lot of factors for example if there is an interim distribution available or whether there is some other source from which they can be met. 

So when they do with the legal costs does that cover the actual legal cost in most cases? 

Yes it can sometimes and sometimes the courts make the condition of the award that it must be paid to the lawyers, you can’t ask for $5,000 a month and $10,000 for legal and get $15,000  a month and then oh gosh the lawyers don’t actually get paid, usually those applicants who come to court for legal costs have got legal bills and owe their lawyers a lot of money and you have to present evidence of that. 

So you were successful in the end, brilliantly successful winning the appeal, securing your client a lump sum which allowed her to move on, that’s the headline outcome but in terms on what was going on in the back ground did you feel like justice was done? 

Yes, very much so, it was a really just outcome and in the circumstances it was exactly what needed to happen. 

So that segway’s nicely in to my next question which relates to the years of litigation that went on here to two separate maintenance hearings and then the appeals and the further appeal plus the relationship property proceeding which went on for another 4 or 5 years. 

Another 3 years I think. 

In the end you got an amazing outcome for her but neither of you knew that at the time and I guess you had no choice but to fight it but how did she cope with that and how did you cope with the load of that? 

Um, the cost well I mean it was terribly stressful I can’t obviously discuss her in anyway because that’s not fair on her without her permission but I think you can speak generally and say for any litigant it is hugely stressful and I always advise litigants who are in the middle of court appearances so on to do the best to live their lives and leave the litigation up to me.  I’ll ask when I need their help for affidavits and so on and just try to live their life if you can manage to do that  so do compartmentalise the litigation and then live your life. 

For me it was quite a turgid case because of that first appeal against the interim maintenance which was terrible and so I was really lucky to have Louise Reed come on board who assisted me and she was magnificent and that made a real difference and usually these days most of my cases I’m really fortunate to have either a junior barrister or an instructing solicitor to assist me and that’s just essential to manage.

To have a team.

Yeah to have a team as much as anything it’s really important to be able to chew through the issues its great. 

Yeah that must have been something to come back from because for the client it sort of suggests that what the ex has been saying all along is true your lawyer’s hopeless, they only want you for the money - this is what often the other side is saying - they are going to bankrupt you and it’s your worst night mare isn’t it. 

I’ve supported you for years why should I support you now?

And yeah there are those pretty bitter ex partners who will say somethings like your lawyer’s useless and wasting your money especially if the lawyer is actually getting closer to the truth that seems to be pulled out. 

Yes it’s one of the methods of applying pressure isn’t it only financial. 

Well undermining... 

Conflict around your children, all sorts. 

On a related point those were years - never mind the parties who were going through the worst years of their lives, you were head to head with Simon Jefferson KC who is another brilliant Family Court litigator, what are your tricks for, I mean I know Simon is a lovely guy, but what are your tricks for stopping it getting personal? 

The great thing about Simon is he has a fantastic sense of humour - not that is appropriate to be cracking jokes around your client and we would never do that - but you can’t let it get personal it’s got to stay professional. 

Or you’re not serving your client are you? 

You’re not serving your client, everyone has a job to do and they do that job to the best of their ability and you can’t delve into a personal rabbit warren it would be awful. 

And actually being collegial with your colleges makes the job manageable if people are being derogatory or nasty or unprofessional it just makes the whole thing torrid and unpleasant, we have a job to do it’s within the bounds of the case law and statue and we’ve got a very clear line of obligation to our client we’ve got to both stick with that and get on with it.  

To a more general one - when I…when you’re reading the Family Proceedings Act and the various sections, it looks like all of the law is there and you can get pretty inspired and think, “wow”, but do you think the Family Proceedings Act is living up to its aspirations in practice? 

Well it is if you use it and that was the whole point of Penn v McQueen saying look it’s here and B v M was the first case to recognise that it hadn’t been interpreted as it should have been and then of course the amendments came in so the statute its self was being very narrowly, conservatively, interpreted and needlessly so, and that was one of the points that was made correctly in Penn v McQueen.  But its predecessor was B v M which wasn’t about maintenance but there was a whole sort of raft of obiter comments about how it hasn’t been interpreted correctly.  That’s where we could lean on that with Penn v McQueen.  So the statute itself isn’t mean spirited but some of the interpretations of it, not so much now but back in the Penn v McQueen days it was pretty woeful. 

One thing that will put people off applying or may do I think in some cases still currently but I’ll be interested in what you have to say about that but to get through it – I think sometimes it can feel like a 1980s Rape Case, that may seem a bit over dramatic you’re watching your client be cross examined 

Torn apart 

Going through bank statements and pretty thoroughly humiliated and feeling like they are begging they should be you know and I know that judges are now making pretty decent awards and they are including Legal Costs and you can see that those levers are going to work but what people do to get there still – the time and the cost and the humiliation and it is outrageous in some cases really and I wonder if you’ve got any thoughts on what needs to be done? What could still be done to change this state of affairs? 

 Well the Law Commission they are all over this like a rash and so their recommendations for FISAS Family Income Sharing Arrangements post separation sort of have a default mechanism and there are ways to get out of it but really that would last for 5 years so there is the expectation of sharing income for 5 years so that is not...

It’s also rolling into your current Section 15 entitlements. 

Hmm it is though that’s the trouble, so the section 15 or economic disparity awards are all rolled into the Spousal Maintenance awards, there is definitely an intersection between spousal maintenance and Section 15 and you cannot double-dip you can’t get a compensation under 15 which doesn’t take into account the Spousal Maintenance but the FISA that has been recommended is quite a good approach because it would not se the undignified begging as you say Lynda Kearns and I did a paper called... 

It’s not about begging, yeah I showed that to my client on the morning of, as that is exactly how she felt. 

And it can get a bit unedifying at times and yes it is humiliating in some ways that recommendation from the law commission would move away from that I welcome that

That’s on hold at the moment? 

It is at the moment, I mean there are some things that I am not that keen on and I can talk about that under the Property Relationship Act – I think that’s a very sensible thing. 

It destigmatises it if you met certain criteria then relief is automatic. 

Well it’s just like Child Support too as you go straight to IRD and bang you’re entitled to it. 

It takes away from that conflict as it’s collected by IRD I wondered about a bit of an algorithm. 

So do you think that Lawyers could be doing more? 

Hmm so that is really interesting, I’m not sure that Spousal Maintenance is sought quite as much?

Maybe incomes aren’t quite as high as in Auckland? 

Well yes, it could be that in amongst the older generation I think there has been the view that Spousal Maintenance is a bit of icing on the cake that you don’t need to be asking for.

Throw it in at the end of the letter just to round it out.

I think that’s changing though by and large practitioners are really aware of people’s maintenance entitlements traditionally there was a bit if an aversion to it south of the Bombay Hills. 

I wonder if it’s also caught up in the concept of alimony in the states where you are asking for a big amount of money. 

And we are pretty well wedded to that clean break principal, I don’t remember when that came out but you know it’s kind of swelled to bigger than its...

Well it’s interesting with that clean break principal, there was a lovely decision of Justice Rodney Hanson which said the clean break principal was never meant to be used as a tool of oppression, effectively, I am paraphrasing him. 

The clean break principal does not appear in either the Relationship Property act or the Family Proceedings Act.


It’s just been a concept that has been utilised in a principal that has been created by judges and it sounds all fair but the trouble is if you have had a long marriage with the long history of division of functions who is the ‘Clean Break’ principal serving? It’s serving the person who is able to cut the other spouse loose and put them out to pasture which B v M really acknowledged, it was good. 

“Why can’t we just forget about the past on move on what’s wrong with you?”

Yes it’s the legacy of the relationship that one party will often be left with and the other isn’t.

Well it’s really interesting because a judge John Adams who is now retired once said to me and its really good advice and he used to have an approach where he would exchange maybe 2 items of correspondence if it hasn’t settled then file proceedings and the reason for that is that is you can keep on corresponding but you are actually heading for a destination where as you can spend thousands and thousands on correspondence. 

And you’re never going to win them over 

It’s wasted, so it doesn’t mean that you can’t negotiate when you file proceedings you can you can do it in tandem and often it will get people negotiating anyway because they mean business. 

And that’s where lawyers are valuable because we know that when you act for the non-earning spouse they are just so reluctant to file as they are in that position of powerlessness that they don’t actually want to 

And they might perceive it as a declaration of war which it isn’t, it’s just saying I’d like the court to assist us if we can reach an agreement as well then that would be lovely, it’s not a declaration of War at all. 

Well it isn’t but the personal consequences of it can be but you know it’s going to happen anyway and it’s much more efficient to do it that way anyway.

I mean I do think that where there really is a level playing field there is nothing wrong with people talking to each other the more people can talk to each other the better in that otherwise it doesn’t feather the nest of Lawyers however there is some circumstances where there really is a power in balance so the weaker party will feel under pressure from the stronger party, so I’m afraid that lawyers who separate are often the worst culprits you are never going to get this in a months of Sundays and try advise their former spouses, I’ve seen that happen quite a few times or they may be better versed in commercial matters and think that they have the upper hand but that’s really unsavoury and that’s where lawyers do need to step in. 

That and lawyers have got that context don’t they actually he has gotten this much right but he has forgotten to mention this part 

And then people, lay people, will perceive Lawyers as getting in the way of their agreement but the reason you do need independent advice is for that very necessary component of independence.

With the benefit of hindsight you know we always think about how are we going to solve this case or how can we resolve it for our clients, if you could travel back in time to 2013 and tell 2013 Viv, slip something into her brief case what to so, is there anything you and Simon could have done to circumvent… obviously you didn’t know it at the time but going back now is there anything that might have circumvented those years? 

Well I mean Simon and I obviously can’t get into details of that case but when we have cases against each other and as he has reminded me we have cases against each other far too often but we as practioners always try to settle things but if they are not going to settle then that is fine off we go. I don’t think that case was ever going to be settlable and as I say it was actually off the bell curve.  It wasn’t your run of the mill case and most of us who have been doing this work for any length of time realise that the client gets a much better result if they  can negotiate a settlement that’s in the range of what the court might do as there is so much uncertainty with going to Court, how the witness might fare, whether they come up to brief, what happens with the cross examination.  It might go well it might go badly for them or for the other party, a judge might have a particular view early on and they might have their own ideas about these things and there is a lot of randomness that contributes to litigation risk but then you can’t settle everything and you’ve just go to sometimes go with your instincts. 

And when you have no choice you have no choice you have just got to do your best. 

Get to make some good law. 

That’s a very good question 

Quick fire question time

Ok so now it is quick fire question time Shelley is going to do this one, 

So we have got 10 questions you’ve got 10 seconds to answer, don’t worry we’re not timing you. 

1.    Can you DIY your own Spousal Maintenance? 

Well you can technically, you may not do a very good job of it but you can. 


2.    How long does it take between applying to The Court and getting an outcome for Spousal Maintenance? 

You should get an interim hearing date within about 3 months of filing your application and serving it 

That’s pretty good really isn’t it. 

3.    Do you have a favourite outfit you wear to Court? 

I have got a purple jacket that I do like. 


4.    Is it worth applying for Spousal Maintenance do you think? 

It is now that you can factor in legal costs it takes a few months for it to have been worth it but then it is yes. 


5.    What the highest maintenance award that you have heard if, I think you thought that McQueen was the biggest at the time.

Well that was a big past maintenance but I mean I’ve got periodic maintenance ordered around $15,000 - $18,000 a month they get settled quick those cases. 


I can imagine especially if they are paying legal in there as well. 


6.    Do you have a courtroom experience that still makes your toes curl when you think about it? Any embarrassing stories that you will admit to 

No that I will admit to, in the High Court a certain High Court Judge saying “This isn’t the Family Court now Ms Crawshaw”… it was kind of like that Shortland St: “You’re not in Guatemala now Dr Ropata” and I almost replied “oh gosh isn’t it, I guess I’ve come to the wrong court I’ll head back down to Albert Street” but I was a little furious! 


7.    Do you think there is too much pressure on male Relationship Property Lawyers to look hot to keep up with the glamorous ladies of Law? 


Oh no I don’t think they even notice. 


They don’t seem to be making too much effort. 


8.    Do you ever say ‘My Learned Colleague’ and struggle to not sound sarcastic? 

Well I never say My Learned Colleague as that is not the correct expression, I am very particular about saying my learned friend and I find it really offensive for other council to call me anything other than that and that is the rules that’s court protocol, colleague isn’t the right word it’s called friend and I object very strongly to be called Ms Crawshaw: Ms Crawshaw said this, that’s not polite and the polite and courteous way to address your fellow council is to talk about them as my learned friend and I think that language is really important - I’ve gone beyond my 10 seconds - because it keeps the Court decorous its really important it’s just as calling the judge your honour 


So it’s less personal isn’t it? It takes you more into that professional 


Yes the courtesy is a really crucial part of it 


So not sarcastic ever? (Laughs.) 


No and I do refrain from saying “with respect” because that of course means without respect, no sarcasm doesn’t really have a place I don’t think it’s a great tool.


That was a bit of a joke question. 


No that’s fine. 


9.    Okay what makes a great Lawyer in your opinion? 

Integrity, professionalism, not being in the bear pit, not punching the noses of people, treating people with dignity. Knowing your onions, being really well versed in what you are doing and being clear don’t get all messy and muddy, be very clear about your submissions and always polite. 


Love it.


10.  What makes a great judge? 

The essence of a great judge is open mindedness and fairness and that goes to the process as well as the result so judges really as counsel do have humility, one of the best judges I think I have ever come across was somebody who was seriously intelligent but would say “I may have gotten the wrong end of the stick here but…” and ask this question and go straight to the heart and he wasn’t being in any way fake about that so it wasn’t a fake humility so humility, 

open mindedness and fairness and courtesy at all times.  You can’t abuse the pulpit you know you can’t abuse your privilege, no bullying thanks we could do without that. 


Open mind-ness I love that, it’s probably not something I would of thought of, 


Alright so for our last section it’s called best question ever so for you Ms Crawshaw KC how do you know you are in the right job? 


How do I know I am in the right job, gosh, well sometimes I wonder whether I am if you’re having a bad say it’s like is there anything worse but when you get a decision and you know it’s right and it really does fit the facts and it is a fair outcome and I really think that happens most of the time in my work anyway and it really makes a difference, I mean I know that is so over used as a term but it really puts the client back in a position after hours, of feeling dignified and  the outcome really resounds well I think that’s why I’m in the job.  And there really is nothing like that is there, especially if there’re children involved and you’ve made a difference to children.  I had letter from a woman who had become a lawyer and she said you won’t remember me but years ago you acted for me when my parents were disputing matters and you were the only person who listened to me at the time my parents didn’t 


Were you Counsel for the Child at the time? 


I was I was a lawyer for child and she said because you listened to me I realised that being a lawyer was a really powerful job and that’s why I’ve gone into law.


Oh wow 


That is gold 


It was the most amazing thing I have ever received 


So that brings us to the end of the podcast if you have enjoyed this podcast and learnt something check out some of the other podcasts we’ve got a link to some materials if you want more details and some interesting articles along with the link to this talk if you enjoyed it you can let people know and if you didn’t just watch another one see how you go.


Or keep it to yourself. (Laughter) 


This was Divorce Café, thank you so much Viv that was really instructive, insightful and I have definitely got some things to take away for my own practice so thank you. 


Thank you very much for asking me to come along 


No that was always a given.