Restraining orders

Contributed by SarahBright and current to 27 July 2018

Types of restraining orders in WA

As from 2017, there are 4 types of restraining order in Western Australia:

• Family Violence Restraining Orders (a new category for violence as between family members) (FVRO)
• Violence Restraining Orders (for violence as between non-family members) (VRO)
• Misconduct Restraining Orders (where the conduct isn’t violence but is otherwise harassing and is not between family members) (MRO); and
• Police order.

Which type of restraining order do I need?

If you require:

1. protection from a person with whom you are, or were, in a family relationship, e.g. married, de-facto partners, ex-partners, related to each other (including by culture or kinship) or otherwise in an intimate or family-type relationship – you can apply for a Family Violence Restraining Order (FVRO)
2. If you require protection from a person with whom you are not in a family relationship, e.g. a work colleague, friend of neighbour - you can apply for a Violence Restraining Order (VRO)
3. If you require a person that you are not in a family relationship with to be restrained from

Police Orders

‘Police Orders’ are on the spot restraining orders made by Police in situations of family and domestic violence. The order may be made for up to 72 hours but will lapse if it is not served within 24 hours. They usually require the perpetrator of family violence to ‘move on’ from the premise. The Police can also remove any weapons from the perpetrator and arrest and charge the perpetrator with a criminal offence.

Breaching a Police Order is a criminal offence (just like breaching a longer-term VRO). If someone wants a longer term restraining order they will have to apply to the court themselves or ask the Police to apply for them (although this is rarely done).

Overview of Family Violence Restraining Orders (FVRO)

The Restraining Orders Act 1997 (WA) can be found at: http://www6.austlii.edu.au/cgi-bin/viewdb/au/legis/wa/consol_act/ro82a1997200/

The main sections are:

• s4 – term used ‘family and domestic relationship’
• s5A – defines family violence.
• s6 – act of family and domestic violence and act of personal violence
• s18 – who can apply

In summary, a court may make an FVRO if satisfied that

• The Respondent has committed ‘family violence’ against person seeking to be protected and the respondent is likely again to commit ‘family violence’* against that person in the future; or
• A person seeking to be protected (or person who has applied for order on behalf of that person) has reasonable grounds to apprehend that the respondent will commit ‘family violence’* against the person seeking to be protected

If court is satisfied, it must make the order unless there are special circumstances that would make the order inappropriate.

Family member is defined in s4 of the same Act and is quite widely defined and includes those who are considered to be family within the cultural, social or religious backgrounds of the related persons. It also includes former partners and children residing in the same house as well as non-intimate family members (e.g. siblings).

Examples of the types of family relationships that are included in the definition include:

• Spouse or ex-spouse;
• De facto or ex-de facto;
• Girlfriend/boyfriend or ex-girlfriend/ex-boyfriend;
• Someone you have had an intimate or other personal relationship with;
• Child, step-child or grandchild;
• Parent, step-parent or grandparent;
• Sibling or step-sibling; or
• A person they were or are related to.

Who can apply for a FVRO?

The following people can apply for a FVRO:

• A person seeking to be protected (an Applicant);
• Children of 16-18 years (read more about this in the Children and Young People chapter)
• A parent, guardian, Police Officer, or Department of Communities (Child Protection and Family Services Division) worker for a child or young person under 18;
• A Police Officer may apply for an order for any person whether an adult or child.

How to apply for a restraining order

To apply for a FVRO or a VRO, you need to complete and then file at a Magistrate’s Court the following 2 documents:

• an “Application – Family Violence Restraining Order or Violence Restraining Order”; and
• an Affidavit in support of the application (this sets out your evidence or the reasons why you should receive a FVRO or VRO).

These forms are available for download at the Magistrate’s Court of WA website - https://www.magistratescourt.wa.gov.au/r/restraining_orders.aspx

There is no charge to file the application.

Practical Tip: There is a Magistrate’s Court in Perth, Armadale, Fremantle, Joondalup, Midland, Rockingham and Mandurah and some in regional centres. For information on where to find a Magistrate’s Court go to https://www.magistratescourt.wa.gov.au/C/court_locations_contacts.aspx

It is best to obtain independent legal advice before making an Application – especially if you have children as it is best to know the effect the restraining order may have on any family court orders as early as possible in your matter. You don’t need a lawyer though to apply for a Restraining Order. Some Courts have a Family Violence Service that has support workers to help you complete the forms. Call your local registry to see if they offer that service.

Language used in restraining orders legal proceedings

Before a FVRO is granted:

• the person applying for the FVRO is called the ‘Applicant’.
• the person against whom the FVRO would be made is called the ‘Respondent’.

After a FVRO is granted:

• the person who the FVRO protects is called the ‘Protected Person’.
• the person against whom the FVRO is made is called the ‘Person Bound’.

What happens after the restraining order application is filed

The Court will then give the Applicant a time for the ‘ex-parte’ hearing. Sometimes this will be the same day but this depends on the Court’s availability, in any case it will be at the soonest available time, usually within a few days.

At the hearing, the Magistrate will ask them to explain why they want a FVRO. The Applicant should again give examples of the ‘family violence’ they have experienced, starting with the most recent events then working their way backwards.

It is important to remember that all the Magistrate knows about the Applicant’s relationship is what they tell them. It is important to give the Magistrate as much detail as possible so they can understand exactly what has been going on.

Appearing at the ex-parte hearing

If the Applicant does not feel confident appearing in court, some Magistrates Courts have a lawyer on duty who may be able to represent them, or Family Violence Support Service workers who can sit with the Applicant and provide support.

At the time of writing, the following duty lawyer services are provided at these metro courts:

• Legal Aid - every day at the Perth Magistrates Court;
• Legal Aid - Tuesdays at the Joondalup Magistrates Court;
• Gosnells Community Legal Centre - every morning at Armadale Magistrates Court; and
• Fremantle Community Legal Centre - Monday to Thursday at Fremantle Magistrates Court.

What can happen at the ex-parte hearing

At the ex-parte hearing, the Magistrate can:

• grant an interim (temporary) order;
• adjourn the application in order to summons the Respondent so the Court can hear from them before a decision is made. This usually happens if a Magistrate is not satisfied that there is enough information before the Court to grant the FVRO; or
• refuse an interim order.

If the Court makes an interim order:

• the Court must explain that order and other information to the parties or make sure they are given or sent an information pamphlet (but the order is still valid if they do not)
• the Registrar prepares the order and faxes it to the Police who then provide it to (serve it on) the Respondent.

Serving the FVRO on the respondent

The Police will serve the FVRO or VRO on the Respondent. The Applicant does not need to arrange this.

Practical Tip: Sometimes the Respondent may become angry and more aggressive towards the affected family member when they first hear that a Restraining Order has been made against them. For this reason, it is important that you stay in touch with the police to find out exactly when they plan to serve the FVRO or VRO on the respondent so you can plan to be somewhere safe when that happens. This could include you staying with you parents for a few days so you are not alone, or with children, when he finds out.

Interim FVRO refused

Magistrate may decide that the Applicant has not met the grounds required to grant a FVRO or that there are special circumstances that make a FVRO inappropriate.

This means the application will be dismissed (in other words, refused). Once an application has been dismissed, the Applicant cannot reapply for a FVRO against the same person, unless there is a ‘change in circumstances’, for example:

• there is new relevant information such as further family violence; or
• the Applicant can prove that there was crucial relevant information which was not put before the Court when the original decision was made for whatever reason.

After the restraining order is served on the respondent

Once the interim FVRO is served, the Respondent then has 21 days to lodge an objection to the order.

If the Respondent:

• agrees or does nothing in that time, the interim order is made final and lasts for 2 years (unless specified otherwise in the order);
• objects the Applicant will be notified by mail and both parties will be sent a date to attend Court for a Final Order Hearing.

Sometimes the restraining order application is adjourned to another date, called a ‘hearing date’, and the Respondent will be summonsed to appear. The Court usually does this because they want to hear the Respondent’s side of the story. If you have an application that is adjourned, we recommend you seek legal advice so your lawyer can consider if you should lead further evidence in support of your application or if there are other legal options available to you.

What happens when the respondent objects

In some cases, the first hearing date will be for a Mention Hearing. This is simply a ‘check in’ date for the Court to make sure the Applicant still wants to apply for a FVRO and to hear the Respondent’s position. If necessary, the Court will then set a further date for a Final Order Hearing. In some courts the first hearing after the objection may be the Final Order Hearing.

What happens at a final order hearing

At a Final Order Hearing, the Court will want to hear from both the Applicant and the Respondent and will make a final decision as to whether a FVRO should be granted or not.

If at the final order hearing:

• the Applicant fails to attend, the Court will usually dismiss the application.
• the Respondent fails to attend (and it is shown they knew about the hearing), the Court will grant the final order if they are satisfied that there is enough evidence to do so.
• If both parties fail to attend, the Court will usually dismiss the application.

What types of FVRO can be made by the Court (interim or final orders)

A Court can make a FVRO in whatever terms it thinks are required, placing restraints to stop the Respondent doing whatever the Court thinks is necessary, including:

• Coming within a certain distance of the Applicant;
• Going to or near where the Applicant lives or works or near a specified building or place (e.g. school or relative’s house);
• Communicating or attempting to communicate with the Applicant (including texting, emailing, using Facebook/Twitter, writing, sending gifts, etc.);
• Preventing the Applicant from using personal property;
• Having firearms, ammunition or a firearms licence; or
• Getting anyone else to do any of the above things.

If a FVRO excludes the respondent from where they live, the Court must also make an order allowing them to collect their personal property. It will say how this is to be done, e.g. escorted by the Police.

"Save and except" clauses

There are certain exceptions to the restraints that will generally be included in every order, such as:

• communicating through a lawyer;
• complying with a parenting order;
• participating in Family Dispute Resolution; and
• instructing a process server to serve documents

The Court can also add any other exceptions that may be required, such as:

• allowing contact via SMS to make arrangements for spending time or communicating with children (provided the Applicant is comfortable with this); and
• allowing the Respondent to attend the house with a Police Officer to recover their personal property

Practical Tip: Useful details and things to think about include in a FVRO are:

• How far away the parties live and work from each other
• If there are children, what safe hand over arrangements can be arranged and how they can safely discuss arrangements for children (e.g. maybe set up a dedicated email address for that purpose), limit to text. Suggest no phone calls.
• Does the perpetrator have a gun or access to any guns (e.g. farmers usually have them). If so, let the Court know this to see if any additional orders are required.

Other orders the Court can make

Since 1 July 2017, the Court has the power to order an adult respondent to attend a behaviour change program as part of a final FVRO.

The Court may order:

• Eligibility Assessment Order - respondent will be eligible unless they lack the ability or capacity to participate
• Behaviour Change Order – if eligible respondent must attend an approved program

Failure to comply is a criminal offence ($1000 fine).

Resolving FVRO proceedings outside of Court

Once you file a FVRO or VRO application, there are a number of ways those proceedings can end, including:

• The Applicant may withdraw the application (if you intend to do this we recommend you seek legal advice as you may be at risk of a cost order being made against you if the Respondent paid for a lawyer to represent them to defend the proceedings).
• Final orders could be made following a trial
• The proceedings could end without a trial by entering into an agreement (there are legally enforceable and non-legally enforceable options - see Undertakings and Conduct Agreement Orders below).

Undertakings

Where the Respondent objects to an interim FVRO, rather than proceed to a Final Hearing, the parties may wish to resolve their dispute by way of ‘Undertaking’. An Undertaking is a promise to the Court by a party to act in a certain manner or not to do certain things and is not legally binding. Generally, the agreement tends to contain similar restraints as a FVRO.

If both parties agree to resolve the case in this way, the Undertaking replaces any FVRO application or interim FVRO. Undertakings are made on a ‘without admission of liability’ basis, i.e. by agreeing to an Undertaking a party is not admitting to wrongdoing.

It is important to understand that an undertaking is not a Court order and cannot be enforced by the Police or by criminal charges. However, breach of an Undertaking can be used as evidence to reapply for a FVRO.

Conduct agreement orders

If, at any point in the proceedings, the Respondent agrees to having conditions or restraints placed on their behaviour, e.g. not to go to the Applicant’s house, the Court may make a Conduct Agreement Order (CAO).

This can mean that the Court does not need to make a finding (decide) whether there has actually been, or could be, family violence.

Unlike Undertakings, CAOs have the same legal effect as FVROs, meaning it is a criminal offence to breach them. Like Undertakings, CAOs can be made without admission of liability meaning, that is the Respondent is not admitting they have done anything wrong.

Varying or cancelling a FVRO

Once made final, a FVRO will stay in place until the order expires or either party is successful in an application to have the FVRO varied or cancelled. If a person protected makes an application the Court will list an ex-parte hearing.

There are no specific circumstances that need to be proved but generally the Magistrate will want to know why the application is being made and will want to ensure that the person is safe and is not making the application under duress.

If the person bound makes an application to vary or cancel the FVRO the Court will set an ex-parte hearing to consider whether to grant leave for the person to continue with the application – the Court will only grant leave to continue if:

• there is evidence to support a claim that the person protected has persistently invited, encouraged, or attempted to cause the person bound to breach the order;
• there has been a substantial change in circumstances since the order was made; or
• there is evidence to support a claim that the restraints imposed by the order are causing the person bound serious and unnecessary hardship.

If the Court grants leave, a hearing will be set and the person protected is summonsed to attend. At the hearing, the Court will hear evidence from both parties and make a decision as to whether the order should be varied, cancelled or stay as it is.

Breach of a FVRO

A FVRO is not, in itself, a criminal charge. Being bound by an order is not a criminal offence that appears on a criminal record. However, breaching (not following or complying with the terms of) a FVRO or VRO is a criminal offence.

If convicted, it will go on the person bound’s criminal record and they could face a fine up to $6000, 2 years in prison or both. If a person is convicted of breaching a FVRO 3 times within a 2 year period, the Court must send that person to prison, unless it can be shown that it would be ‘unjust in all the circumstances’ and that the person is ‘unlikely to be a threat to the safety of a person protected or the community generally’.

It is not a criminal offence for the person protected to help, encourage or force the person bound to breach the order but if the Court finds that the person protected did aid the breach, they may cancel the FVRO on the basis that it is not needed.

Intersections of FVRO with other areas of law

If you or someone who know has experienced family violence, it is usual for that person to have legal remedies available to them in different areas of law – in particular family law, care and protection (child protection) and criminal law.

Family Law

For example, an affected family member may require a Restraining Order to deter the perpetrator from coming near them or their home. However, if there are children of that relationship then the affected family member may also need to pursue remedies in the Family Court as the Family Court has the power to make orders which override Restraining Orders and to ensure the ultimate aim of keeping the affected family member and children safe that family member should obtain independent legal advice about how the restraining order and family court proceedings may impact on each other so that steps taken in one court doesn’t cause issues for you in another court.

Care and Protection

If the Department of Communities is involved, you may also require or benefit from some legal advice about child protection (care and protection) as well as restraining orders and family law options.

Criminal Law

If the family violence is also or includes some criminal offences, then this will also impact on your options. For example, there may be an option to ask the prosecution to include as a condition of the accused’s bail that they don’t come within 200m of the affected family member or their home. This may be a better option than seeking a family violence restraining order which would require separate court application and hearings. Changes made in 2017 now allow criminal law courts when they sentence perpetrators who are convicted of criminal charges to also make family violence restraining orders. It is best to seek advice from a lawyer about your options in the criminal law process (which may also include your eligibility for criminal injury compensation if you were the victim) if the perpetrator ends up being charged with any criminal offences.

Frequently asked questions - FVROs

Q - How long does a FVRO last?

A - An ‘Interim Order’ stays in effect until a final order is made. If the Respondent does not object within 21 days of service, the order automatically becomes final. A ‘Final Order’ can be made to last as long as the Court thinks is appropriate. If no date is specified in the order, it will last for 2 years.

Where the person bound is in prison, the FVRO continues in force during the period of imprisonment plus the length of the order from the date of their release. Life-Time Restraining Orders can be granted in more serious cases when a perpetrator is convicted and sentenced for certain criminal offences. An order for or against a child is generally not put in place for longer than 6 months. (NB: a FVRO cannot be taken out at all against a child under 10 years old).

Q - When can a Court make a FVRO protecting children?

A - There is a further test for a FVRO to protect a child – a FVRO may be made for the benefit of a child if it can be shown that:

• the child has been ‘exposed’ to family violence; or
• the Applicant reasonably fears that the child will be ‘exposed’ to family violence.

Once one of these grounds are found to exist, the Court must make a FVRO unless special circumstances would make the order inappropriate.

Q - What does exposing a child to violence mean?

A - Exposing a child to violence” is defined in s. 6A ROA as

• A child is exposed to family violence if the child see or hears the violence or otherwise experiences the effects of the violence.
• Examples of these situations include (but are not limited to):
• Overhearing threats of death or personal injury;
• Seeing or hearing an assault of a person;
• Comforting or providing assistance to the person assaulted;
• Cleaning up a site after property damage;
• Being present when Police of Ambulance Officers attend an incident involving violence.

Q- What happens if you have a FVRO and there are family court proceedings?

A - Although a FVRO may affect a party’s right to have access to their property or children, a FVRO is not a substitute for agreements or orders which make arrangements for children or property following separation. The Family Law Act 1975/Family Court Act 1997 (FLA/FCA) deal with separating couples, division of property and arrangements for children. Any order made by the Family Court overrides a FVRO to the extent of any inconsistency between the orders.

If there are existing Family Court orders, generally a Court making a FVRO cannot make an order which conflicts with those orders. However, there are some rare circumstances where a Court that grants the FVRO can change or cancel any parenting orders made by the Family Court. See the Family Law Chapter for more Information.

Q – What is a Misconduct Restraining Order?

A - A Misconduct Restraining Order is made to stop a person being intimidating or offensive towards you, rather than violent. It can also stop a person from damaging your property. It only applies where you are notin a ‘family or domestic relationship’ with that person.

Practical Tip: There is a detailed information sheet about MROs on the Magistrate’s Court of WA website at http://www.magistratescourt.wa.gov.au/_files/Civil_factsheet_39.pdf

Orders made in other states

In November 2017 a scheme commenced which means that any new family violence restraining order or police order made after 25 November 2017 in any Australian State or Territory will be automatically recognised and enforceable across Australia. It is called the National Domestic Violence Order Scheme (NDVOS).

Practical Tip: What a family violence order is called varies from State to State, e.g. WA is the only state which calls them ‘restraining orders’” or VROs. In NSW they are called ‘apprehended violence orders’’ or AVOs while in Victoria they are called ‘intervention orders’ or IVOs. You may also hear them called ‘family violence protection orders’ which is a general term used to describe all of these types of orders regardless of how they are called in an individual state.

Practical Tip: If you have an order from another state. you should not assume that the police in your state know about the order as, at the time of writing, each State and Territory’s police force only had unfettered access to their own databases. There are mechanisms for police in own state to find out details about an order in another state but these can take much longer. It can be better and safer for you to let the police know if you have an order or to seek independent legal advice about any other steps you could take to increase your safety.