If you (or someone you know) are seeking a restraining order or someone is seeking a restraining order against you, then you make like to read on.
First, you may like to note that many restraining order applications are resolved without the need for a Court hearing. For example, one or both parties may be willing to provide an undertaking to the Court that they will abide by certain conditions (typically including not contacting the other person directly) for an agreed period of time.
Second, some restraining order applications may become somewhat complicated and drawn-out, for example when there are Family Court proceedings already underway involving a custody dispute. In these types of more complex situations the conditions of a restraining order need to be carefully thought out so that the parties can still meet their parenting obligations (such as child handover) without breaching a condition of the restraining order.
Restraining orders in WA come in three different types: Misconduct Restraining Orders (MRO); Violence Restraining Orders (VRO); and Family Violence Restraining Orders (FVRO). Whilst there are similarities between the three types, each is intended for a different purpose. Alleged breaches of restraining orders can be prosecuted by the Police and if made out in Court, constitute a criminal offence which will attract a penalty from the Court. Restraining orders made in other States can also be enforced in WA.
MRO’s are sought to provide protection from the behaviour or conduct of another person who is not a family member (typically a neighbour or other person who you come into contact with on a semi-regular basis) that is making you feel fearful, offended or intimidated. An MRO can also be sought to prevent a person damaging your property or breaching the peace (eg playing loud music on a regular basis).
VRO’s are sought to provide protection from the behaviour or conduct of another person who is not a family member that is making you fearful of future personal violence. Notably, a VRO can be made even when no actual violence has occurred in the past and can be made in relation to stalking and threats of violence.
FVRO’s are sought to provide protection from the behaviour or conduct of a family member that is making you fearful of future personal violence. ‘Violence’ does not just mean physical violence. It can include financial control or emotional, sexual or psychological abuse (such as threats against you’re your children or pets etc).
‘Police Orders’ are in practical terms an ‘on the spot’ FVRO. They can be issued by Police for up to 72 hours but lapse at the end of the period of time the Police specify in the order. In other words, if you want the protection of an ongoing FVRO then you will have to apply to the Magistrates Court yourself, or you may like to ask the Police whether they will apply on your behalf.
The initial hearing of a restraining order application is ordinarily ‘ex-parte’ (which simply means that it is heard without the alleged perpetrator being present) before a Magistrate. The Magistrate will decide whether an interim order is to be put in place. If so, the Police will then ‘serve’ the restraining order Court paperwork on the alleged perpetrator (referred to by the court as the Respondent) and he or she will then have 21 days in which to contest it if they wish to do so. If they do not respond to the Court then an order may be made on a final basis at the next hearing date. However, if they do respond (contesting the order) and the application is not resolved by consent, then the matter will ultimately proceed to a hearing (trial) at which time each party will be able to call witnesses and put their version of events before the Court. The Court will then decide whether a restraining order is to be put in place on a final basis and if so, the conditions of that restraining order.
If you have read this far and think that you may need to get some advice and/or representation in your restraining order matter, then you may like to get in touch with Austral Legal.
We offer an initial discounted 30-minute SmartMove appointment for $80 to discuss your situation and answer any queries you may have. Beyond the initial appointment we may also be able to offer you fixed fee pricing for our CourtAssist restraining order services. If so then this means that you will know what your legal fees for your restraining order matter will be up-front with no hidden surprises at the end.