Violence Restraining Orders Act Perth WA

Parties at violence restraining orders hearing in Perth WAWhat is a restraining order?

A restraining order is an order that protects a person (the protected person) and their property from another person (the restrained person).

In Western Australia, if you have been threatened, harassed, abused, stalked, assaulted or subjected to family violence in any manner whatsoever then you may be able to obtain a restraining order under the Restraining Orders Act 1997 (WA) for your personal protection.

What are the different types?

In Western Australia, there are 3 types of restraining orders:

  1. Family Violence Restraining Order (FVRO)
  2. Violence Restraining Order (VRO)
  3. Misconduct Restraining Order (MRO)

To obtain a FVRO the parties must be in a family and domestic relationship.  A family and domestic relationship is defined to include married and de facto couples, related parties and parties in an intimate personal relationship.

If you are not in a family or domestic relationship, then you must apply for a VRO or MRO.

FVROs, VROs and MROs have different requirements.

If your situation is urgent, then you should contact the Police on 000 or 131 444.  The Police may be able to arrest the other party.  Or the Policy may issue the other party with a Police Order (PO).  A PO will restrain the other party for a short period of time, so that you can take steps to obtain a restraining order.

Do you need a restraining order?

If you believe that you need protection from another person, then you probably need a restraining order.

Remember, if your situation is urgent, then you should immediately telephone the Police on 000 or 131 444.

The Restraining Orders Act 1997 (WA) sets out the grounds upon which you may apply for a restraining order.

The range of circumstances that would justify a restraining order are defined broadly and are not closed.

The courts deal with every application on a case-by-case basis.  That means that the facts of each case are different, so the outcomes of each case are different.

It is important that you obtain the advice from an experienced family lawyer to assess the facts of your case.

If your case is urgent and you do not have time to obtain legal advice beforehand, then you should err on the side of caution and apply for a restraining order.  You can then subsequently obtain legal advice as soon as practical.

We have appointments available daily for urgent matters.  Appointments do not have to take place in person and may be telephone or other electronic means such as Skype, Messenger, FaceTime, Zoom or WhatsApp.

If you are not sure what to do, then please telephone us urgently.

How do you apply for a restraining order?

To apply for a FVRO, you must apply to the Magistrates Court of Western Australia.

A FVRO can also be made by the Family Court of Western Australia in exercising its relevant jurisdiction.

If requested by the applicant, the first hearing takes place without the respondent being present (ex parte).  This hearing is called the interim hearing.  The court may be persuaded to grant an interim FVRO even though the respondent has had no notice.  If the court grants an interim FVRO, that order will be served on the respondent by the Police.  The respondent will then be bound by that interim FVRO pending further order of the court.

If the respondent disputes the interim FVRO than the respondent must file a notice of objection within the prescribed time.  The case is then either listed for mention or for a final hearing.

More often than not FVROs are able to be resolved without the need to go to a final hearing.

What are the steps to get a restraining order?

If your situation is urgent, then we recommend that you attend the local registry of the Magistrates Court immediately.  The staff at the Magistrates Court are quite helpful and will direct you to the forms required.  You may also be able to obtain the services of a duty lawyer at the Magistrates Court to assist you.

If circumstances permit, then you may attend to the following to steps:

  1. Make a list of the facts you will seek to rely on.
  2. Read the information about restraining orders on the Magistrates Court website.
  3. Read the Interim FVRO Guide provided by Legal Aid WA. There are a number of self-help videos  This is a very useful resource.  We highly recommend you read the information.
  4. Read the violence restraining orders or misconduct restraining orders fact sheets.
  5. Complete the Forms to apply for a restraining order. The Forms are available on the Magistrates Court website to download.
  6. Telephone on our office to speak to us about the facts and merits of your case. We recommend that you have us double check the forms you have completed.  We can review your list of facts in support.   We can answer any final questions that you may have.
  7. Attend the local registry of the Magistrate Court and file your application. If requested, you may attend the interim hearing on the day.  If you feel that you need a lawyer at the hearing, we are able to assist you.

How do I defend, fight or challenge a restraining order? What steps to defend? What should you do if you have been served?

If you have been served with a restraining order, then:

  1. You must comply with and must not breach the restraining order.
  2. You must not have any dealings with the protected person, except as expressly stated. We recommend you obtain legal advice before attempting to communicate with the protected person.
  3. Complete and lodge with the court the objection form attached.
  4. When you attend the court, order a copy of the other party’s court documents and transcript of the interim hearing, if any.
  5. Read the other party’s court documents and transcript. Then prepare a draft response to all the facts stated therein.
  6. Identify any witnesses or documents that you can rely on to rebut the evidence of the other party.
  7. Make an appointment to discuss all the above with an experience family lawyer. Obtain property representation or coaching for the final hearing.

How much does a restraining order cost in Australia?

If you represent yourself there are no costs, except that there may be a filing fee payable.

If you have engaged the services of lawyer to represent you, then the costs will vary depending on:

  1. The law firm that you use.
  2. The complexity of your case.
  3. The amount of preparation required.
  4. The number of witnesses involved.

We are able to provide a fixed fee quote for obtaining or defending a restraining order.

We believe that you should be able to have expert legal representation without costing earth.

We are able to tailor the costs to the specific circumstances of your case.

Want to know how much it would cost, then telephone us today for a free quote.

Do I need a lawyer?

It is not compulsory to have a lawyer.  You are entitled to represent yourself.

However, it is strongly recommended that you have a lawyer.  Having a lawyer will increase your prospects of success.

If you cannot afford a lawyer to represent you, then we can still assist you by providing you with legal advice and coaching.

We are able to coach you so that you can have the best chances of success.

What grounds do you need?

To obtain a FVRO you must establish family violence or a risk of family violence.

A FVRO can be obtained if the person sought to be protected has suffered an act of abuse that is likely to recur or there are reasonably fears that an act of abuse will be committed.

A FVRO may be obtained in appropriate circumstances for the benefit of a child that has been exposed to an act of family and domestic violence.

An act of abuse is defined as an act of family and domestic violence or an act of personal violence.

Family and domestic violence is broadly defined to include an assault, kidnapping, damaging property, intimidating, offensive or emotionally abusive conduct, or threats to engage in such conduct.

An act of personal violence is all of the above excluding behaving in an ongoing manner that is intimidating, offensive or emotionally abusive.

Before granting a FVRO the court must have regard to a number of factors including the well-being of the children, the accommodation needs of the respondent, need to protect from acts of abuse, past history of the respondent, and any current legal proceedings and any criminal record of the respondent and any other matters the court considers relevant.

The court is to place primary importance on the need to protect the applicant and any children from being exposed to acts of abuse.

In exercising its discretion to grant a FVRO, the court must engage in weighing-up or balancing the rights of the parties.

We are able advice you about the prospects of success in a reduced fee initial consultation.

What restraints may be imposed?

In making a FVRO the court may impose such lawful restraints on the respondent as the court considers appropriate to prevent the respondent from committing future acts of abuse.

Examples of conditions that may be imposed by the court include:

  1. being on or near the premises of the protected person;
  2.  being on or near a specified location;
  3.  approaching within a specified distance;
  4.  attempting to communicate with the protected person; and
  5.  causing another person to engage in above conduct.

The court’s powers of restraint are very broad and it is immaterial that the respondent has a legal or equitable interest in any property restrained from access.

How long does a RO last?

Restraining orders generally last for 2 years.  The court can extend or shorten the operation of a restraining.

The court has a large discretion to vary the operation of a restraining order.  You will need to take legal advice to know whether your case qualifies for any variation.

Is a restraining order a criminal offence?

A restraining order is not a criminal offence.

The breach of a restraining orders is a criminal office.

You must not breach a restraining order in any way, shape or form.

Often the protected person may attempt to contact you or invite you to contact them.  You must not breach the restraining order and must avoid contact with the protected person, subject to express exceptions.

It is important that you take advice urgently about the operation of the restraining order.  You must not just take a stab or guess about the terms of the restraining order.  The risks of breach are too great.

You may not contact the protected person directly or indirectly.   Many people fall foul of this requirement.  You cannot pass on a message to the protected person by any other person or family member.

If children are involved, then you should contemplate bringing an urgent application to the Family Court of Western Australia to override the restraining order.  You must not delay.  Many parents have failed to take steps to see the children because they thought the restraining order prevented access with their children.  If the restraining order is interfering in your ability to see the children, then you should contact us immediately.  Do not delay.

What happens if you breach a restraining order?

Breaching a FVRO has serious consequences.  A person who has breached a FVRO has committed a criminal offence and is liable to a fine of $6,000.00 or 2 years imprisonment, or both.

The protected person must report an alleged breach to the Police.  If they proceed, the Police will then formally charge and arrest the other party.  The matter then becomes a criminal case.  If the other party is innocent, they can the defend the case through the criminal courts.

How do I avoid a restraining order?

It is relatively easy for a person to obtain an interim FVRO.  The interim hearing proceeds ex parte.  The respondent is not present.  The courts generally accept all of the evidence of the applicant at the interim hearing.

You may not have done anything wrong and the other party may still have obtained an interim FVRO against.  You still have a right to defend the FVRO.

There are things that you can do to avoid a restraining order:

  1. Move out, if possible.
  2. Restrict communications, if possible.
  3. Avoid arguments and confrontations.
  4. Do not swear or be abusive.
  5. Do not threaten the other party in any way.
  6. Be polite and act like a reasonable person.
  7. Do not send inappropriate text messages.
  8. Do not post inappropriate comments on social media.
  9. Do not follow or spy on the other person.

These recommendations are not exhaustive.  If you are concerned the other party may apply for a restraining order, then you should speak to an experienced family lawyer immediately.

What to expect at the hearing?

The interim hearing takes place ex parte.  The other party will not present.  You will stand at the bar table.  The judge will then ask you questions about your case.  All communications will be recorded.  A transcript can be obtained.  You must be prepared to answer any question about your case.  If you do not answer the questions properly, the judge may not grant you an interim order.

If the other party objects, then the case will be listed for a final hearing.  The final hearing is a trial.  Depending on the numbering of witnesses and complexity, the final hearing may take a few hours, half a day, a full day or a number of days.

If you intend to represent yourself at the final hearing, then you should be prepared to:

  1. Provide an opening statement.
  2. Give evidence-in-chief.
  3. Answer questions under cross-examination.
  4. Ask cross-examination questions of the other party and their witnesses.
  5. Deliver a closing argument.

If you have concerns about you ability to perform the above, then we recommend that you contact us to obtain guidance and coaching.  We can provide you with a fixed fee quote.

Do I have to pay the other party’s legal costs?

The court can order you to pay the costs of the other party if you are not successful.

You must take legal advice if you are at all concerned that the court may make a costs order against you.

Often a FVRO is used to try evict a person from the former matrimonial home.  The use of a FVRO for this purpose is not recommended.

FVROs and the circumstances in which they apply need to be carefully considered and ideally before applying or defending you should consult an experienced family lawyer.

If a FVRO is attempted to be obtained inappropriately the court can award costs.  For such costs to be awarded the application must have been frivolous or vexatious.  Although this is a high threshold to meet it is still important to avoid a significant cost penalty had to obtain advice from an experienced family law practitioner.

How do you vary or cancel a FVRO?

Either party can apply to cancel or vary a restraining order.

We highly recommend that you obtain properly legal advice before you apply to cancel or vary a restraining order.

Are there other options?

In many cases there are other options available.  You may be able to apply to the family courts for exclusive occupation.  Or you may be able to apply for sole custody.  You may be able to obtain consent orders or enter a binding financial agreement.

The family court is able to make orders that override a FVRO to enable the respondent to live with or spend time with their children.  If the other party is using the FVRO to stop you seeing the children, then you may apply to the family court to override the FVRO.  It is important to legal advice promptly.

In some cases, a party may feel threatened or afraid, but this may not amount to circumstances that warrant a FVRO.  That person may still be able to apply to have the respondent restrained from entering the former matrimonial home.  Such an application is brought in the family court and different principles apply.  The circumstances in which those orders would by the family court are much broader than the circumstances in which a FVRO will be granted by the Magistrates Court.

Every case is different.  Your case is different.  You should take advice from an experienced family lawyer about the best option for you.

What else should you be considering?

If you are thinking about obtaining a restraining order, then we recommend that you should also considering the following:

  1. Parenting orders
  2. You family law rights
  3. Property settlement
  4. Consent orders
  5. Spousal maintenance
  6. Child support
  7. Binding financial agreements

Are we the best team for you?

Our highly experienced restraining order lawyers can advise and represent or coach you in obtaining and defending restraining orders.

If in need of advice or immediate representation by seasoned restraining order lawyer in Perth, please contact use on (08) 9328 4646.

You have 3 options:

  1. You can have short free initial consultation.
  2. You have 15 minute free initial consultation.
  3. Reduced fee initial consultation