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Ask Leon Your Own Question
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 42629
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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If i want to overturn or ask the court to revisit a settlement

Customer Question

If i want to overturn or ask the court to revisit a settlement that was agreed by both parties what do i need to do to have the case restarted?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Evening
My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.
On what grounds?
I assume that you are referring to consent orders for property?
Customer: replied 1 year ago.
the consent order covered property shares etc at the time my friend was under massive pressure from her husband and suffered physical and verbal abuse. He r husband refused to leave the family home unless she agreed to his terms who wrote to the courts . She was under a physiologist at the time he wrote "i believe that for her husband to remain living in the family home may well result in significant deterioration in her mental state " but as they had children he felt it important the children stated in the he wrote "if she was forced to leave the family home with her children that was forced on them this would also compound her state" the jusge hearing the matter allowed her x husband to stay in the home and after a further 6 months of torment she then accepted his crazy low offer just to get him out of her life . She only took the settlement because of this and she has now regained her faculties and now wants her share of the family assets
Expert:  Leon replied 1 year ago.
Good Evening
She needs to go see a solicitor and get more detailed advise.
The section she needs to rely on is 205ZH of the Family Law Act in WA
http://www.austlii.edu.au/au/legis/wa/consol_act/fca1997153/s205zh.html
It sets out when you can have orders set aside.
But she needs to see a Solicitor to go thought everything and get reports etc.
I would not suggest she does this on her own it will result in her incurring costs and a possible cost order against her.
I hope this makes sense and if there is nothing further thank you for using my services.
If I have missed anything, or you have any further questions please let me know
If there is anything else in the future please do not hesitate to ask.
Please do not forget to leave positive feedback.
Regards
Leon
Customer: replied 1 year ago.
when you say the section she needs to rely on what bases would she need to rely on that section is there a way to open the door for the claim?
Expert:  Leon replied 1 year ago.
Good Evening
Only that section of the Family Court Act gives the court the power to overturn the orders.
I have given you the link and you should copy and paste it in the address bar
It is very detailed and sets out when the order can be set aside.
If the court accepts her claim and sets them aside then the court will apply the following 4 steps
Step 1: Determine what the assets are and their value
This will include all assets and their value as at the day that you are dividing them. It does not matter whose name the assets are in, they will form part of the matrimonial pool. Superannuation entitlements are also included.
Step 2: Determine what contributions you and your spouse made towards the assets.
This includes a consideration of both financial and non-financial contributions. Consideration is given to what assets each of you brought into the marriage as well. The weight given to your initial contribution will be dependent upon the length of your relationship. The longer the relationship the less weight given to the initial contribution.
Step 3: What are each of your future needs.
Consideration is given to your respective ages, your comparitive income earning capacity as well as other factors.
If these things don't balance equally for each spouse, then an adjustment is made in the percentages.
Step 4: Make an order that is just and equitable between both spouses
New orders will them be made.
Customer: replied 1 year ago.
we are also aware of hidden assets and if we are to go down that road to reopen the case we may be limited to the old settlement and make a recalculation based on the new assets only
Customer: replied 1 year ago.
whereas this argument may reset the whole settlementwe intend to get a lawyer onto it but i need to get a understanding of whet to instruct them on first
Expert:  Leon replied 1 year ago.
Good Evening
This is all covered in the section
The court will either set the old orders aside and make new orders or amend them,
You have to go through the section and it will assist you on how to draft the application.