Misconduct restraining orders

Contributed by Harriet Ketley and current to 1 September 2005

In cases where there is actual or threatened damage to a person or to property or where there is harassment or offensive or provocative behaviour, a restraining order may be considered necessary.

Restraining orders are relatively easy and cheap to obtain. Once the order has been made and served on the offender, he or she can be arrested and fined or gaoled for breaching it.

Under recent changes to the Restraining Orders Act 1997 (WA) it is no longer possible for Violence Restraining Orders to be made, except in the context of domestic and family violence.

An application for a Misconduct Restraining Order can be made where, unless restrained, a person is likely to:
• behave in an intimidating or offensive manner; or
• cause property damage; or
• behave in a way which is likely to breach the peace.

Unless the Court orders otherwise, a Misconduct Restraining Order lasts for one year.

MAKING AN APPLICATION

Applications are made in the Magistrates Court. The applicant must complete a simple application form available from the Court Registry. A small fee may charged; however, if the applicant is on a low income (a pension or benefit), an application to waive the fee may be made to the Registry.

The court will fix a date for a mention hearing (usually four weeks to allow time for service of the application on the respondent) and will issue a summons to the respondent. The police will serve the summons on the respondent.

If the respondent attends the mention hearing and does not agree to the application, it will be adjourned to the next available restraining order trial date.

If the respondent does not appear in answer to the summons, the court may hear the application in his or her absence. If satisfied the respondent has been served with notice of the hearing and the applicant wishes to proceed with the application, the Court may make the order sought.

Where the matter proceeds to a contested hearing, the applicant must prove on the balance of probabilities that his or her neighbour’s conduct behaviour meets the test referred to at the beginning of this section.

SERVICE

If the court makes an order, court personnel prepare the paperwork and arrange for the orders to be served by the police. Orders are not effective until served. Where the respondent avoids service and the court is satisfied this is done deliberately, it may order substituted service.

VARIATION OR CANCELLATION OF ORDERS

An application to vary or cancel an order may be made by either the restrained person or the person protected by the order in the event that circumstances have changed since the order was granted.