Restraining orders

Contributed by Camille Inifer and Shayla Strapps and current to 1 September 2005

Restraining Orders under the Restraining Orders Act 1997 (WA) (“the Act”) are orders which impose certain restrictions on the conduct of an individual where a complainant satisfies the Magistrates Court that there is a real risk that, without such orders, violence, damage to property, harassment or threats to the complainant are likely to occur.

Restraining Orders do not replace the powers of the police to charge an alleged offender or the powers of the court to impose penalties for assaults or criminal damage.

There are two types of Restraining Orders under the Act – Violence Restraining Orders and Misconduct Restraining Orders. Police 24 hour and 72 hour Orders are also a form of Restraining Order. However, since December 2004 misconduct restraining orders can no longer be made in the situation of family and domestic violence.

VIOLENCE RESTRAINING ORDERS (DOMESTIC AND FAMILY VIOLENCE)

An application for a Violence Restraining Order (Domestic and Family Violence) can be made where, unless restrained, a person is likely to:

• violently attack; or
• act in a way which would cause fear of a violent personal attack.

Unless the Court orders otherwise, a Violence Restraining Order (VRO) lasts for 2 years, unless it is a telephone order of less than 72 hours or an interim telephone order for up to 3 months.

Lifetime Violence Restraining Orders can also be made by a sentencing judge when an offender is sentenced for any of the following serious offences (s. 63(a)):

• Attempted murder,
• Grievous bodily harm,
• Aggravated sexual penetration without consent,
• Sexual coercion,
• Aggravated sexual coercion.

A lifetime Violence Restraining Order will not be made if the person to be protected objects.

Restraining orders can also be made to cover children. Section 11(a) states that if it can be shown that a child has been exposed to an act of family and domestic violence, and is likely to be exposed again, or there is a reasonable fear that the child will be exposed, then an order for the child will be granted.

MAKING AN APPLICATION

In May 2005 reform to Local Court legislation took effect, creating a single court of summary jurisdiction through the amalgamation of the Local Court, Court of Petty Sessions and Small Claims Tribunal into a single Magistrates Court.

Applications for Restraining Orders should now be made at the Magistrates Court, at one of the registries located across the State.

Applications can be made by the person who fears the violence, by a police officer or by another authorised person such as a solicitor. Where the applicant is a child (under the age of 18 years) or has a guardian appointed to act on their behalf, a parent or the guardian can make the application.

The person seeking protection (the applicant) must complete a simple application form available from the Court Registry. There is no fee for an application for a VRO.

Where the applicant is unrepresented, the first hearing (the interim hearing) may be held in the absence of the respondent. This is known as an ex-parte interim hearing. Interim orders made at the ex-parte hearing may be made to last until the next hearing when the respondent has the opportunity to address the accusations. If the applicant wishes, the application may not be heard immediately, but the matter can be set down for a hearing in the presence of the respondent at a time which allows him or her to be summonsed.

Special procedures exist to protect the applicant in interim hearings: section 44(a) states that strict rules of evidence will not apply, while section 27 provides that interim hearings must take place in a closed court and a person will have the right to give evidence by affidavit and have a support person present.

If the respondent does object to the application following the granting of interim orders, it will be listed for a hearing. At that hearing, each party has the opportunity to give evidence. Section 44(c) provides that where the respondent is not represented, the court shall prevent the respondent from directly cross-examining any person with whom they have a family or domestic relationship.

If the respondent does not object to the application or 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 person to be protected wishes to proceed with the application, the Court will automatically make the order sought (s 42(2) of the Act).

Costs

A Costs Order will only be made against applications in Violence Restraining Orders if the applicant is shown to be frivolous or vexatious.

Telephone applications

Applications for a VRO by means other than in person are only available in the event of an emergency or where it is not practical for the person to be protected to attend the court.

Applications for a Telephone Order may be initiated by an authorised person such as the police or the individual involved. Telephone applications should only be made where the matter is serious enough to warrant the application and must be made to an Authorised Magistrate.

Connection between the police, the applicant, the Authorised Magistrate and (if ordered) the respondent can be by telephone, video, email or any other means or combination of means.

After hearing evidence, the Authorised Magistrate may:

• dismiss the application;
• order the matter to mediation;
• adjourn the matter to a mention (that is, a preliminary hearing);
• make an order lasting up to 72 hours; or
• make an interim order of up to 3 months.

During the telephone hearing the restrained person may be detained in an identified place without warrant to enable service of a Telephone Order. If the restrained person does not or is considered not likely to remain in the nominated place, police can arrest and detain the person in custody for up to 2 hours.

Firearms

If a VRO is made, the Court will make a Firearms Order which prohibits the person restrained by the order from being in possession of a firearm.

If the person bound by the VRO does not give up possession of the firearm(s) or the licence, then police may enter their premises without a warrant and seize the firearms.

The Commissioner of Police must notify anyone who is a joint licensee of a firearm with the restrained person, and must also notify any employer of the restrained person where he or she would have access to firearms in the course of employment.

Applications to remove the restriction can be made where the restrained person can show it is necessary to have access to a firearm for employment purposes.

Applications against children

Applications against children are heard in the Children’s Court. No application can be heard against a child under 10 years.

Interaction with Family Court orders

The person to be protected must inform the court and the police about any Family Court orders which are in effect at the time of the application. It is important that they also inform the court of any police orders in place.

The Magistrates Court must ensure orders made do not conflict with any existing Family Court orders. Where practical, the Court will also attempt to make the orders compatible with any informal custody or access arrangements between the parties.

Consent orders

A respondent can consent to a final order being made and if this consent is given, the court can make the order without being satisfied that there are grounds for making the order. (section 41(1))

Undertakings

If an application is made for a restraining order and both parties agree that a restraining order is not necessary, they can instead agree to an undertaking. An undertaking does not have the legal effect of a restraining order, so anyone considering agreeing to an undertaking should get legal advice.

Service

Section 55 of the Act deals with service of restraining orders. If the court makes an order, court personnel prepare the paperwork and arrange for the orders to be served in person. Usually this is done by the police. Telephone orders are prepared and served by the authorised person; again, this is usually the police.

If satisfied that all reasonable attempts to serve a Restraining Order in person have been made and have not been successful, the Registrar of the Court may authorise oral service. Other than face-to-face, oral service of the order may be effected by telephone, radio, video conference or other similar means (s. 55(6)).

Where the person to be restrained is deemed by the court to be deliberately avoiding service, it may order ‘substituted service’ by steps directed by the court, such as placing a notice in a daily newspaper.

Date orders become effective

The order becomes effective on the date on which the respondent is served with the order, regardless of the method of service. If service is by substituted service, the orders become effective on the date on which the order is brought to the attention of the respondent. A written certificate of service is issued stating the day, time, place and method of service. This certificate is deemed to be proof of service.

VARIATION OR CANCELLATIONOF ORDERS

An application to vary or cancel an order may be made by the restrained person, the police, or the person protected by the order (including a protected person’s guardian or the parent of a child).

If the application is made by the respondent, the court must hear evidence in the absence of the person to be protected and decide whether the application should be allowed to proceed.

If the court decides the application should proceed, a summons will be issued on the protected person or their parent or guardian so that they may provide what evidence they wish at the hearing of the application.

BREACH OF RESTRAINING ORDERS

It is an offence to breach a condition of any Court order. Even if the person protected consented to the breach, it is still a breach and will be taken seriously. The only time where the consent defence can be used by the person restrained is where there is a breach and both parties are:

• involved in primary dispute resolution processes;
• involved in conciliation or negotiations involving lawyers;
• acting as a result of an emergency; or
• acting in accordance with action taken by the Department for Community Development under the guidelines of the child welfare laws.

In the absence of any such defence, a breach of a Violence Restraining Order may incur significant penalties including a fine of up to $6,000 or up to 2 years in custody or both (s.61(1)).

It is useful for the protected person to carry a copy of the Restraining Order with them and to ensure that the local police station has a copy. This way, there should be no delay in the police taking action where a breach is alleged.