Restraining Orders in Western Australia – Frequently Asked Questions

Restraining orders can be an unfortunate but necessary legal procedure. If someone is violent towards you, threatens you or your property, harasses or intimidates you, and you are fearful that the behaviour will continue, you can apply for a restraining order at the Magistrates Court nearest to you.

However, a restraining order can be, at times, a complicated process to navigate – especially when time is a factor. We sat down with DCH Legal restraining order lawyer (and specialist) Daniel Loreck to discuss some of the different kinds of restraining orders, how best to navigate these restraining orders, and to answer some common questions.

So Daniel, what is a restraining order?

Daniel: A restraining order is a legal device which stops a person from doing certain things that would otherwise be legal. In most cases, a restraining order restricts a person from communicating with or being near, another person.

What types of restraining orders are available in Western Australia?

There are three types of restraining orders in Western Australia under the Restraining Orders Act 1997. The Family Violence Restraining Orders (FVROs), Violence Restraining Orders (VROs), and Misconduct Restraining Orders (MROs).

  1. An FVRO applies to individuals who are, or wherein a domestic relationship (and that can include people in couple relationships or dating).
  2. VROs and MROs apply to individuals who don’t have a family relationship with each other. You can’t seek a VRO or MRO against a family member or ex-partner.
  3. An MRO is aimed at preventing public disturbances and “nuisance” behaviours, whereas FVROs and VROs are concerned with more serious acts of violence and abuse.

Is a restraining order a court order?

Daniel: Yes, it’s a formal court order made by a Magistrate after a court hearing. It’s not like applying for a parking permit at the shire council. The magistrate or justices will weigh up the evidence and decide whether or not to make the restraining order. If the case doesn’t meet the legal criteria, the order won’t be made.

Who can get a restraining order?

Daniel: Anyone over the age of 18 can apply for a restraining order. If a child needs a restraining order, their parent or guardian has to apply on their behalf. In exceptional cases, police officers or prosecutors can apply on behalf of an adult or a child.

In certain situations, an adult can apply to have other adults or children added to their own order. But as a general rule, the person who has experienced the violence or abuse should apply for their own order, and they should give their own evidence to the magistrate separately. Children are not allowed to give evidence in restraining orders proceeding unless the case is being heard in the Children’s Court or if extraordinary circumstances apply.

How do I get a restraining order in Western Australia?

Daniel: The process is more or less the same throughout Australia. In most cases, the applicant puts in a written application at a courthouse, which gets processed. They then go into the courtroom and give sworn evidence to the magistrate from the witness box. In some cases, the court will make a temporary restraining order, which is called an “interim restraining order”. A final restraining order will never be made unless the other party has been told about the case and had a chance to express their side of the story.

If you have a restraining order made in Western Australia, it can be registered in other states, and vice versa. So, if you’ve come from interstate and have an Apprehended Violence Order (AVO) or a Domestic Violence Order (DVO), it can be registered and enforced here in Western Australia.

What do I need to prove to get a Violence Restraining Order in Western Australia?

Daniel: You need to prove that:
(a) act of “family violence” or “personal violence” has occurred and is likely to happen again, or
(b) that the person who needs protection reasonably fears an act of family violence or personal violence will occur.

You also need to show that the order is appropriate in the circumstances.

“Acts of abuse” and “acts of violence” are defined in the Restraining Orders Act at sections 5A, and 6 and each term covers a wide range of behaviours. Children can be put on restraining orders if they have been subjected to, or witnessed, family or personal violence.

“Appropriate in the circumstances” is something which the court will decide based on the individual facts of each case. In determining that, the Court can consider matters such as the restrained persons’ need to have accommodation, and the possible hardship the order may cause them.

The factors are listed in section 10F and 12 of the Act. Where an FVRO is being considered, it’s presumed that the order will be appropriate unless there are exceptional circumstances.

What if there’s been no physical violence?

Daniel: You can get a restraining order if there’s been no physical violence.

The days when you couldn’t expect to get an order unless there’d been an assault are long gone. The definition of personal violence and family violence are much broader than just assaults. They include behaviours such as property damage, threats and stalking.

If the application is for an FVRO, most types of coercive behaviour will constitute grounds for an order-for instance, ongoing emotional abuse or severe economic deprivation.

How long does it take to get a violence restraining order?

Daniel: Usually, it’s very quick. Many Courts will hear an application on the day it’s lodged or within a few days. The first part of the case is often heard without the other party being present. When that happens, it’s called an “ex parte hearing.”

Even though the Court can act quickly, sometimes there might not be time to get to Court. For instance, if you’re in a situation where your safety, or a household member’s safety, is at an urgent and serious risk, you should seek police assistance immediately.

Depending on the situation, the police can sometimes issue a temporary restraining order – this is called a Police Order – that can last for between 24 to 72 hours. This can often provide enough time and protection to get to Court to seek a full restraining order.

What happens at an ex parte hearing?

Daniel: The ex parte hearing happens typically in a closed courtroom. Because the proposed restrained person is not present, the applicant is under a legal duty to tell the Court about all relevant facts – including facts which might not assist their case. The applicant can have a lawyer or support person present.

At the end of the ex parte hearing, the magistrate or justices can either grant an Interim Violence Restraining Order, dismiss the application outright, or adjourn to a further hearing without making an Interim Violence Restraining Order.

What happens after the ex parte hearing?

Daniel: If the court dismisses a restraining order application at an ex parte hearing, the case finishes and the Court does not notify the other party (the respondent).

If the restraining order application is adjourned to a further hearing, the respondent will be formally notified by Police. If an Interim Violence Restraining Order was made, Police will serve the respondent with a copy of the order and explain its terms to them. The applicant is not required to be involved in this process but can liaise with Police to either assist with service if need be or to inquire on the progress of service.

After notification or service, the respondent must decide whether or not to contest the restraining order. This happens by lodging a written notice in the Court. If an Interim Violence Restraining Order was made, the time to object is limited to 21 days after service. If no objection is lodged within the 21 days after service, the Interim Restraining Violence Order automatically becomes a final order.

If the respondent does object, then the Court will list the matter for a trial, in which both parties must attend and may give evidence. The Court will advise both parties by letter that an objection was received and will confirm the time and place of the next Court hearing.

What happens at a Restraining Violence Order trial?

Daniel: The Court assesses the situation as at the present date, noting that things might have changed since the initial application was made. Although an interim restraining order might have been appropriate at the time, it was sought, that might no longer be the case by the time the parties have their trial. Or conversely, the problems in the relationship might have gotten worse.

The trial is a formal event. The rules of evidence apply. Each party can have a lawyer represent them. Each party can call their witnesses and can cross-examine the other party and the other party’s witnesses. After hearing all of the evidence, the Court will either dismiss the application or make a final restraining order on similar or modified terms. The Court can also award costs to the winning party, although the circumstances where a Court will make an order against an applicant are minimal.

What if I’m in urgent danger and can’t wait to go to Court?

Daniel: If your safety, or another person’s safety, is at risk, you should get police assistance immediately. Depending on your situation and the events, the police may be able to make a temporary restraining order – this is called a Police Order. These orders run for either 24 or 72 hours, and that can often provide enough time to get to court to get a full restraining order.

What should a person do if they have been served with an Interim Violence Restraining Order?

Daniel: If you have been served with an Interim Violence Restraining Order, it’s important to remember that you must abide by the terms – as serious penalties apply if you breach the order. And you should never contact the other party – even if they are contacting you.

The Court Registry, or a Lawyer, can help you find out why the court made the interim order. You will be able to find out what evidence the court considered. If your access to children or property has been affected by the restraining order, there are legal avenues to address that. There may be ways to resolve the restraining order proceedings without having to go to trial. Lawyers and Mediation services can often help with these things.

Don’t ignore or put off responding to the Interim Violence Restraining Order. The 21 day objection period is a deadline which the court strictly enforces. If you let the 21 day period pass without lodging an objection, the restraining order will become final – and this is usually for two years. Once a restraining order has been made a final order, it is difficult to remove – even if circumstances change.

Can a restraining order affect my employment?

Daniel: In most cases, the answer is “no”.

A restraining order governs the lawful behaviour of one private citizen against another. It’s not a criminal matter – it’s a civil order and is not recorded on your criminal record. It will not show up on a standard police clearance. In many circumstances, a restraining order won’t be relevant to a person’s employment, and there will be no obligation to disclose it to a current or potential employer.

Having said that, there are certain occupations when an employee’s restraining order history must be disclosed to an employer. These generally apply to jobs that involve work with children, security or policing roles, or jobs where the employee has to hold a valid firearms licence as a condition of employment. If you think you might fall into one of these categories, you should get legal advice.

In some cases, a restraining order might have the practical effect of preventing an employee from doing their job. For instance, there may be terms in the restraining order, which prohibit attendance at specific locations, or communications with certain people, or limit other things that are essential functions of the job. In these cases, it might be appropriate to have the order varied or cancelled. A Lawyer or Mediator may be able to help negotiate an agreement or bring an urgent Court application if there’s no agreement. The legal criteria aren’t easy to satisfy, so legal representation is advisable.

How does a restraining order affect custody and visitation with children?

Daniel: A restraining order will not prohibit the restrained person from communicating or spending time with a child – unless the order expressly says so. The difficulty is that most restraining orders contain terms that prohibit the parents from interacting with and being near each other. Most orders also prohibit the parties using “lay” third parties as messengers. So even though an order doesn’t say a parent can’t have contact with a child, that can often be the practical result.

To get around this problem, parties can ask the Court to insert exclusion clauses in their order, which allows limited contact between parties to make arrangements for children. If a restraining order was made and it doesn’t include these exclusion clauses, then an accredited Mediator or Lawyer is permitted to act as the “go-betweens” to organise contact until the order is altered or overridden. In some cases, it will not be appropriate to alter or override the order and the Court will not do so.

Do Family Court orders affect restraining orders?

Daniel: They will – provided the Family Court order is a parenting order. If a Family Court parenting order is in place, the restraining order will be overridden to the extent of any inconsistency.

Any interactions that are allowed under a Family Court parenting order will be lawful – even if they are contrary to the terms of a restraining order. If the Family Court order is not a parenting order, it will not override the restraining order. For instance, a family court order which deals with financial matters will not override a restraining order.

Can a restraining order affect my Family Court case?

Daniel: Yes, it can.

Most often, this happens when the case involves children. When a Family Court makes a parenting order, it must consider any family violence and any FVRO involving the child or members of the child’s family. If facts have been admitted or proven in FVRO proceedings, then the Court will give weight to those facts where appropriate. In other words, if the FVRO case proves there was family violence, that could influence the parenting orders that are made.

In the general sense, parties and lawyers in parenting cases have an obligation to advise the family court if any family violence or child abuse has occurred or might occur. Even if the allegations haven’t resulted in an FVRO, it’s likely the Court will hear about them anyway, and that in turn could influence the Court’s decision about the children.
If the Family Court decides that contact with the child is appropriate, the restraining order itself will be a barrier. The parenting order will override the restraining order to the extent of any conflict.

What can I do in the case of a breach of a restraining order?

Daniel: If a restraining order is breached, a criminal offence has been committed. Penalties, including fines or imprisonment, can apply. If a breach of an FVRO has occurred or is suspected of having occurred, Western Australian Police have a legislative obligation to investigate – and press charges if there’s sufficient evidence. The person protected by the restraining order isn’t required to report a breach to the police, but if they choose not to this may become a relevant consideration in further court hearings.

If you have been charged with breaching an FVRO, or VRO, this is a serious matter. Strict rules relating to bail and sentencing will apply. You should obtain legal advice. It’s not a legal defence if the person protected by the order consented to the breach, contacted the restrained person, or encouraged the restrained person to breach the order. If those things have occurred, a court may, on the application of a party, consider changing the terms of the restraining order – but there will likely be no impact on criminal liability or the sentence that may be imposed.

If you are in doubt as to whether a particular act or interaction is permitted under a restraining order, you should get legal advice.

How long does a restraining order last?

Daniel: The length or the order is usually written on the order.

If the duration is not specified, it is automatically considered to expire on the date which is two years from the date of the trial, or the date of the interim order if there wasn’t a trial. If you are unsure of the expiry date of an order, you should seek legal advice.

How do I vary or cancel a restraining order?

Daniel: A person who is protected by a restraining order can cancel it at any time without having to notify the restrained person, or involve them. The Court usually requires the protected person to attend court and give evidence. The judicial officer will need to be satisfied that the protected person is cancelling the order of their own free will and that they understand the consequences of doing so.

The terms and conditions of a restraining order can be varied if there’s an appropriate reason. The variation can occur by agreement by both parties or by an application by either of them. In each case, a written application must be filed and the Court must formally make the order. If there is no agreement, the court will summon the parties to a hearing and decide if any amendments should be made.  

If the application to cancel or vary a restraining order is made by the restrained person, he or she must attend an initial hearing and persuade the court that they have an arguable case before being allowed to proceed to a full hearing.

How can DCH Legal Group assist with retraining orders?

DCH Legal Group is experienced in acting for both the person seeking to be protected in restraining order proceedings and also the person responding to a restraining order sought or obtained against them.

We can assist you to see if you can negotiate an agreement with the other party, and can represent you in Court at any stage of the process. For more information on our retraining order services, view our service page or arrange an appointment.

Note: if you would like to receive or speak to a specialised prenuptial agreement lawyer, please contact the DCH Legal office on 08 9382 8488, or by email at dch@dch.com.au.

Disclaimer:
This article is general in nature and is not to be taken as legal advice. You should consider seeking independent legal, financial, taxation or other advice to check how the information relates to your unique circumstances. DCH Legal Group is not liable for any loss caused, whether due to negligence or otherwise arising from the use of, or reliance on, the information provided directly or indirectly.

DCH Legal Group are experienced family lawyers who guide clients through legal challenges that arise from separation. We know right and do right, to achieve positive outcomes for our clients.

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