Restraining Orders (WA)

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Restraining Orders (WA)

RESTRAINING ORDERS

Restraining Order is an umbrella term which refers to Family Violence Restraining Orders (FVRO), Violence Restraining Orders (VRO) and Misconduct Restraining Orders (MRO).  They are all Orders made by the court and impose obligations on the Respondent to do or refrain from doing certain activities.  Whether an FVRO, VRO or MRO is applicable will depend on the relationship between the parties, and the type of behaviour the Applicant is seeking to restrain.

A Restraining Order is not a criminal charge, however if you breach a condition of a Restraining Order, you may be charged with the criminal offence of contravening a Restraining Order.

The objects of Restraining Orders in Western Australia are to prevent acts of violence and to ensure the safety and protection of individuals in a variety of different contexts and to encourage perpetrators of violence to be accountable for their conduct.

  1. An Applicant is the person who makes an application for a Restraining Order.
  2. Person Seeking to be Protected refers to either the person who has applied for a Restraining Order, or the person on behalf of whom the application for a Restraining Order is made.
  3. A Protected Person is a person named in a Restraining Order as a person whose benefit the order is made.  Often an Applicant or a Person Seeking to be Protected becomes a Protected Person once a Restraining Order is made.
  4. Person who is Bound is the person named in the Order, on whom restraints on behaviour are imposed by the Restraining Order.
  5. A Respondent is a person against whom an application is taken out by an Applicant. The Respondent is often the same person as the Person who is Bound.

Yes, they are two different types of orders. Both orders have very similar processes, procedures and protections, however, the most significant difference is who can be a Protected Person and who can be the Respondent.

A Family Violence Order is only made in relation to persons who are family members, or have an intimate relationship. In all other circumstances, a Personal Protection Order is the appropriate Order. An example might be a neighbour, colleague or acquaintance.

A magistrate will issue a Restraining Order (whichever is relevant in the circumstances), if satisfied of certain criteria.  In the case of FVROs and VROs an order will be granted if either;

  1. the respondent has committed family violence/personal violence against the person seeking to be protected, and is likely to do so again; or
  2. there are reasonable grounds to suspect that the respondent will commit family violence/personal violence.

In the case of an MRO an order will be granted if the magistrate is satisfied that;

  1. unless restrained, the respondent is likely to;
    1. behave in a manner reasonably expected to (or in fact would) be intimidating or offensive to the person seeking the order; or
    2. cause damage to property; or
    3. behave in a manner that is likely to breach the peace.

If you are served with an application for a Restraining Order (FVRO, VRO or MRO) you should seek legal advice immediately.

It is very important to understand whether you have also been served with an Interim Restraining Order. That is, an Order with a number of conditions which may prevent you from acting, communicating or seeing the Protected Person. It is important that you read these conditions carefully as any breach can amount to a criminal offence.

It is also important to understand what upcoming court dates you are required to attend and what will happen on each of those dates.  If you fail to attend a court date, after you have been served with a copy of the Interim Restraining Order, a Final Order may be made in your absence and you will not have an opportunity to contest the application.

FVRO

FVRO stands for Family Violence Restraining Order.  This type of Restraining Order is applicable if the Person Seeking to be Protected is, or was, in a ‘family relationship’ with the Respondent.

What is a family relationship?

For the purposes of the Restraining Orders Act 1997 (WA) people are in a ‘family relationship’ if:

  1. they are, or were, married to each other; or
  2. they are, or were, in a de facto relationship with each other; or
  3. they are, or were, related to each other (including being related to the person’s current or former spouse or defacto partner, and taking into account cultural, social and religious backgrounds); or
  4. one of whom is a child who —
    1. ordinarily resides, or resided, with the other person; or
    2. regularly resides or stays, or resided or stayed, with the other person; or
  5. one of whom is, or was, a child of whom the other person is a guardian; or
  6. they have, or have had, an intimate personal relationship, or other personal relationship, with each other (meaning a personal relationship of a domestic nature in which the lives of the relevant parties are or were interrelated); or
  7. one of whom is the former spouse or former de facto partner of the other person’s current spouse or current de facto partner.

A person can apply for a FVRO if they have been affected by ‘family violence’ by the person against whom they are seeking to take out an order.

A person can also apply to have their child, or children, added to the Restraining Order. However, if the children are over the age of 16, they are required to make an application for their own Restraining Order.  A police officer can also apply for an FVRO in order to protect an adult or a child.

What is ‘family violence’?

For the purposes of FVROs, ‘family violence’ means;

  1. violence, or a threat of violence, by a person towards a family member; or
  2. any behaviour by the person that coerces or controls the family member or causes the member to be fearful.

Examples of behaviour that may constitute family violence include (but are not limited to):

  1. an assault against the family member;
  2. a sexual assault or other sexually abusive behaviour against the family member;
  3. stalking or cyber-stalking the family member;
  4. repeated derogatory remarks against the family member;
  5. damaging or destroying property of the family member;
  6. causing death or injury to an animal that is the property of the family member;
  7. unreasonably denying the family member the financial autonomy that the member would otherwise have had;
  8. unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or a child of the member, at a time when the member is entirely or predominantly dependent on the person for financial support;
  9. coercing, threatening, or causing physical abuse, emotional or psychological abuse or financial abuse, in connection with demanding or receiving dowry, whether before or after any marriage;
  10. preventing the family member from making or keeping connections with the member’s family, friends or culture;
  11. kidnapping, or depriving the liberty of, the family member, or any other person with whom the member has a family relationship;
  12. distributing an intimate image of the family member without the family member’s consent, or threatening to distribute the image;
  13. causing any family member who is a child to be exposed to behaviour referred to in this section.

If you are seeking an FVRO against someone who is over the age of 18, you will need to apply through the Magistrates Court of Western Australia.  If you are seeking an FVRO against someone who is under 18 years old, you will apply in the Children’s Court.

You can apply for an FVRO in one of three ways.

  1. In person at court. If you apply in this way, you will need to download and complete the relevant form from the Court website; or
  2. Online through a lawyer or approved legal service provider; or
  3. If the situation is considered an emergency, a police officer can help you apply over the telephone.

After you have lodged your application form, you will be provided with a date and time for a first hearing of your matter.  No one from the public will be allowed to attend this first hearing, and the respondent will not be informed of the application until after the initial hearing.  The respondent will not be at this first hearing.

When will the Court issue an FVRO?

A magistrate will grant an FVRO if satisfied that either;

  1. The Respondent has committed family violence against the Person Seeking to be Protected, and is likely to do so again; or
  2. There are reasonable grounds to suspect that the Respondent will commit family violence.

If you are served with an interim FVRO you should seek legal advice immediately.

It is very important to understand when you have been served with an Interim Restraining Order. That is, an Order with a number of conditions which may prevent you from acting, communicating or seeing the Protected Person. It is important that you read these conditions carefully as any breach of a condition can amount to a serious criminal offence.

It is also important to understand that if you are served an Interim Restraining Order, you have three options:

  1. Agree to the Restraining Order being made final by consent.
  2. Fill out the objection section on the back of the notice and file it within 21 days. You and the applicant may both be willing to participate in an FVRO conference.
  3. Do nothing, in which case the order will be made final 21 days after you were served.

If you have objected, the Court will then list the matter for a hearing on a date available to the Court. The interim Restraining Order remains in force, even if you object. You should seek legal advice at this stage.

You may receive a summons to go to the Court for a Restraining Order hearing. This means that no Interim Restraining Order has been made.

If you fail to attend a court date after you have been served with a copy of the Interim FVRO, a Final FVRO may be made in your absence. You will then have no opportunity to contest the application and you will be bound by the conditions in the Final FVRO.

VRO

VRO stands for Violence Restraining Order.  This type of Restraining Order applies if the Applicant is seeking to restrain the Respondent from committing ‘personal violence’ which is not in the family context.  Common examples include neighbours, work colleagues or friends.

When will the Court issue a VRO?

A magistrate will grant a VRO if satisfied that either;

  1. The Respondent has committed personal violence against the Person Seeking to be Protected, and is likely to do so again; or
  2. There are reasonable grounds to suspect that the Respondent will commit personal violence against the Person Seeking to be Protected.

What is Personal Violence?

Personal violence means one of the following acts that a person commits against another person with whom he or she is not in a family relationship;

  1. assaulting or causing personal injury to the person;
  2. kidnapping, or depriving the liberty of, the person;
  3. stalking the person;
  4. threatening to commit any act described in paragraph (a) or (b) against the person;
  5. if the person who commits the act has an imagined personal relationship with the person against whom the act is committed, an act that would constitute family violence if those persons were in a family relationship.

If you are seeking a VRO against someone who is over the age of 18, you will need to apply through the Magistrates Court of Western Australia.  If you are seeking a VRO against someone who is under 18 years old, you must apply in the Children’s Court.

You can apply for a VRO in one of three ways.

  1. In person at court. If you apply in this way, you will need to download and complete the relevant form from the Court website; or
  2. Online through a lawyer or approved legal service providers;
  3. If it is considered an emergency, a police officer can help you apply over the telephone.

After you have lodged your application form, you will be provided with a date and time for a first hearing of your matter.  No one from the public will be allowed to attend this first hearing, and the respondent will not be informed of the application until after the initial hearing.  The respondent will not be at this first hearing.

If you are served with an interim VRO you should seek legal advice immediately.

It is very important to understand when you have been served with an Interim Restraining Order. That is, an Order with a number of conditions which may prevent you from acting, communicating or seeing the Protected Person. It is important that you read these conditions carefully as any breach of a condition can amount to a criminal offence.

It is also important to understand that if you are served an Interim Restraining Order, you have three options:

  1. Agree to the Restraining Order being made final by consent.
  2. Fill out the objection section on the back of the notice and file it within 21 days.
  3. Do nothing, in which case the order will be made final 21 days after you were served.

If you have objected, the Court will then list the matter for a hearing on a date available to the Court. The interim Restraining Order remains in force, even if you object. You should seek legal advice at this stage.

You may receive a summons to go to the Court for a Restraining Order hearing. This means that no Interim Restraining Order has been made.

If you fail to attend a court date after you have been served with a copy of the Interim VRO, a Final VRO may be made in your absence. You will then have no opportunity to contest the application and you will be bound by the conditions in the Final VRO.

MRO

MRO stands for Misconduct Restraining Orders.  This type of Restraining Order applies to conduct that is considered to be:

  • intimidating
  • offensive
  • property damage
  • a breach of peace (such as regularly yelling in public, obstructive protest, or intimidating people who are trying to enter or use a public place)

MROs do not apply to people who are in a family relationship.

An application for an MRO can be made by;

  1. the Person Seeking to be Protected;
  2. a police officer on behalf of the Person Seeking to be Protected, or on behalf of the public generally;
  3. a parent of guardian of a Person Seeking to be Protected.

When will the Court issue an MRO?

A Magistrate will grant an MRO if satisfied that;

  1. unless restrained, the respondent is likely to;
    1. behave in a manner reasonably expected to (or in fact would) be intimidating or offensive to the person seeking the order; or
    2. cause damage to property; or
    3. behave in a manner that is likely to breach the peace; and
  2. granting an MRO is appropriate in the circumstances.

If you are seeking an MRO against someone who is over the age of 18, you will need to apply through the Magistrates Court.  If you are seeking an MRO against someone who is under 18 years old, you must apply in the Children’s Court.

You can apply for an MRO either;

  1. In person at court. If you apply in this way, you will need to download and complete the relevant form from the Court website; or
  2. Online on the eCourts Portal.

If you are served with an summons for a MRO hearing you should seek legal advice immediately.

It is important to understand what upcoming court dates you are required to attend and what will happen on each of those dates.

If you fail to attend a court date after you have been served with a summons to attend, a Final MRO may be made in your absence. You will then have no opportunity to contest the application and you will be bound by the conditions in the Final MRO.

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