Restraining Orders in Western Australia (WA)

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The Restraining Orders are an important part of the legislation on lives . The Restraining Orders Act 1997 states various guides and conditions for the protection of persons and their properties from;

• Violence
• Aggression
• Damage and Destruction
• Stalking
• Abuse
• Blackmail and manipulation

All "successful" applications to the court as per the rules of the Restraining Orders Act 1997 for a protection order will get favourable conditions that prevent the other person from carrying out the threats.

Breaching the conditions of a restraining order is a serious criminal offence. In the majority of circumstances, the offence for breaching a restraining order will show up on an individual's Nationally Coordinated Criminal History Check WA result.

The types of Restraining Orders

The Restraining Orders Act lists three types of restraining Orders a court can grant you under the law. These are orders depending on your relationship with the respondents and the special laws that may appear.

1. Family Violence Restraining Orders (FVRO)

The Family Violence Restraining Order gives the applicant protection from violence, threats or other aggressive behaviours from someone in a domestic relationship with them.

The court will order an FVRO if it concludes that there is a domestic or blood relationship between the parties. Some examples of these relationships include;

• Married people
• De-facto partners
• All related by kinship or culture
• Brother, Sister, or

2. Violence Restraining Orders (VRO)

The WA Court will impose a VRO to protect the applicant from "acts of abuse" or future assaults from someone other than a family member. Section 6 of the Restraining Orders Act 1997 considers these assaults to include; kidnapping, destruction of property or other threatening and intimidating behaviours.

These orders are those issued against;

• Neighbours
• Flat-mates or Roommates

3. Misconduct Restraining Orders

The court will impose an (MRO) where the "attack" is not as severe as physical violence but still causes the applicant to fear. It also involves all cases for

• public disturbances or affray offences,
• causes intimidation to others,
• fear to damage properties.

In certain ways, the cause of fear is similar to a VRO but less serious. The court may issue a VRO at the end of an MRO application if it deems the application suitable for one.

The court usually considers lots of factors before deciding on the type of conditions to impose, including;

• Degree of actions
• Criminal History
• Access to weapon

How do you apply for a Restraining Order?

Different circumstances may affect the process for a Restraining Order; some cases may be more precarious than others, so the court allows third parties or organizations to apply for a Restraining Order on behalf of others.

Those who can apply for a restraining order include;

• People seeking protection

Those who feel threatened or fear a person's actions should apply for a restraining order. However, they must complete an application form either online, in-person or through the Police

• Parent/Guardian of a child or adult

Juveniles or other people under 18 years can apply for a Restraining Order with the help of a guardian/Parents. However, their application is handled in a Children's Court following the legislation of the Act.

• Authorized support and service providers that assist people with the online application
• Police officials or authorities

The Police authority will in cases that require swift actions to protect the applicant; will prohibit the respondent from making any contact with the applicant or their properties. In this case, the Police will issue a temporary restraining order which may last till the court makes the final order.

The Police may also apply for a Restraining Order on behalf of a person. it includes cases where there is harm or assault, or the possibility exists.

How the Court issues a Restraining Order

If an applicant applies for a Restraining Order, the court will schedule their matter for a First hearing (Mention hearing) usually before a magistrate court. If the applicant fears the person who they accuse (respondent), the court can permit a closed hearing without the respondent. Such a hearing is referred to as an ex-parte hearing.

At the hearing, the applicant must convince the court through the legal counsel of their grounds for a protection order. Your proof may require you to provide evidence of;

• Past physical abuse
• Possibility if an imminent abuse
• that the respondent has grounds to carry out the threat
• A reasonable cause to fear for the abuse

If the Magistrate is convinced that a restraining order is necessary, especially where there is an urgent threat, it will grant an interim order. An Interim Order is valid for 6 months. It fills for the period until the VRO application is settled in the court; where the respondent contests the application.

When the court makes an Interim order, it ensures that the respondent gets the order. There is a 21 days window available for the respondent to object to the Interim Order or Restraining Order charge.

When a respondent objects to the Interim Order

If the respondent within 21 days indicates they want to defend the application, the case will proceed for a Final Order hearing. The Court will have to hear both sides of the arguments (taking the applicant as a special witness) before imposing a Final Order.

However, if the respondent does not object to the application, the court will issue the Final Violence Restraining Order.

In the Final Order, the court will impose conditions following the State's legislation (the Act).

What situations influence the Court to grant a Restraining Order?

At the final hearing, the Magistrate will listen to all parties and consider the evidence they present before deciding whether to issue a VRO or not.

Section 11A of the Act (1997) states that the court will grant VRO if;

• The respondent abused or attempted to abuse, and unless restrained will likely commit such an act
• Where the applicant reasonably fears that the respondent will abuse or commit other violent acts against them
• The court is convinced that a violence restraining order is an appropriate action in the circumstances.

The other factors the court will consider before issuing the conditions of the Order are;

• If the Order will stop/prevent the assault from occurring
• Hardship the Restraining Order will cause to both parties (accommodation, job, migration, and co)
• The wellbeing of other parties like Children and other vulnerable
• The relationship between both parties (applicant and respondent); helps the court to decide which conditions to impose (FVRO or a VRO).

What can a Restraining Order do to protect the applicant?

A Restraining Order is issued by the court to prevent imminent or continuous abuse from a respondent. It is a civil order that restricts the respondent from certain acts to protect an applicant. It may also include rehab programs and other educational programs.

The Restraining Order must be issued following the stipulations of the Act and must not be longer than the period, usually 2 years.

If you get a Restraining Order issued against the respondent (your aggressor), it will prohibit the respondent from;

• Contacting or coming close to you or your properties
• Blackmailing or harassing you or members of your family as stated in the application
• Ostracizing or banishing you from a property or community
• Making claims to a property in dispute.

Depending on the circumstances of the breach, it may also

• Mandate that the respondent completes a rehab or educative program
• Vacate a building or premises; in the case of shared accommodation
• Prevent the respondent from obtaining certain licenses (Firearm, security license
• The restraining Order may also mandate the respondent not to leave or migrate from an area during the period.

What if I get served with a Restraining Order charge?

If you receive a restraining order charge or an interim order, seek the services of a lawyer experienced criminal laws. Your lawyer will advise you on the best defence application or arguments. The court can cancel a Restraining Order application if they decide it lacks merit.

If a “respondent”;

Ignores the court notice of an interim order,

Or

Fails to appear in court without approval, the court will issue a final order in your absence.

All parties involved in the application are bound by all conditions the court imposes. Failing or going against any of the terms will lead to a charge of a breach.

What are the penalties for breaching a Restraining Order?

Any accused person that breaches an AVO (Restraining order in this case) will be arrested and charged by the Police.

If such breach includes the FVRO or a VRO, they will be remanded in Police Custody pending their appearance in court.

The court may also consider the possibility of a future breach before they release the offender.

Section 61 of the Restraining Orders Act stipulates Maximum penalty of breaching an FVRO or VRO or a Police Order is;

• 2 years imprisonment

Or

• A $6,000 fine.
• Both

However, stiffer penalties will follow for repeat offenders or those who have breached a Restraining order in the past 2 years. It includes fines of up to:

• $10, 000
• Mandatory Imprisonment (especially after the second breach)
• Other stiff penalties apply if the breach involved a child being exposed to violence.

The penalty for breaching a Misconduct Restraining Order (MRO) is $1,000

How long does a Restraining Order last?

, the court will stipulate the duration of the Order in the copies it provides. The court will issue it for a period it decides the applicant will be safe. However, it is usually not more than 2 years.

Does a Restraining Order show in my Nationally Coordinated Criminal History Check WA?

While the VRO or FVRO are civil orders and will not be disclosed in a Nationally Coordinated Criminal History Check WA, a breach is a serious criminal offence.

In addition to the penalties, the court imposed for breaching a Restraining Order, the details of the order and breach will be included in the Nationally Coordinated Criminal History Check result.

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