In Western Australia, if a person has been threatened, harassed, abused, stalked or assaulted in any manner whatsoever they may be able to obtain a restraining order under the Restraining Orders Act 1997 (WA) for their personal protection.
Restraining orders provide personal protection in family law.
There are 3 types of restraining orders: a Violence Restraining Order (‘VRO’), a Misconduct Restraining Order (‘MRO’) and a Police Order (‘PO’).
To obtain a VRO 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.
A VRO 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 VRO 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 VRO 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 VRO, the court must engage in weighing-up or balancing the rights of the parties.
In making a VRO 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:
- being on or near the premises of the protected person;
- being on or near a specified location;
- approaching within a specified distance;
- attempting to communicate with the protected person; and
- 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.
Final restraining orders are usually imposed for a period of two years. However, it is in the discretion of the court to specify the period that a restraining order applies.
Breaching a VRO has serious consequences. A person who has breached a VRO has committed a criminal offence and is liable to a fine of $6,000.00 or 2 years imprisonment, or both.
Often a VRO is used to try evict a person from the former matrimonial home. The use of a VRO for this purpose is not recommended.
VROs and the circumstances in which they apply need to be carefully considered and ideally before applying a person should consult an experienced family lawyer.
If a VRO is attempted to be obtained inappropriately the court can award costs against the applicant. 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.
To apply for a VRO, the parties make an application to the Magistrates Court of Western Australia in their area.
A VRO 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. The court in hearing the application may be persuaded to grant an interim VRO even though the respond has had no notice. If the court grants an interim VRO that order will be served on the respondent. The respondent will then be bound by that interim VRO pending further order of the court.
If the respondent disputes the interim VRO 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 VROs are able to be resolved without the need to go to a final hearing.
In some cases, a party may feel threatened or afraid of the respondent but this may not amount to circumstances that warrant the grant of a VRO. 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 VRO will be granted by the Magistrates Court.
At Beacon Family Law our highly experienced restraining order solicitors can advise and represent parties in obtaining and defending restraining orders.
If in need of advice or immediate representation by seasoned restraining order lawyer in Perth, please contact Beacon Family Law on (08) 9328 4646.