Restraining Orders

RESTRAINING ORDERS

This section contains information on Violence Restraining Orders (VRO) and Misconduct Restraining Orders (MRO).  Any reference to legislation refers to the Restraining Orders Act 1997(WA) unless otherwise stated.

VRO’s and MRO’s are both court orders and are considered civil orders.  They do not appear on a person’s criminal record.  They are designed to restrain a person’s behaviour towards another person.  However; if a person breaches a VRO or MRO that person can be charged with a criminal offence.  If convicted of that offence, that conviction will appear on a person’s criminal record unless a spent conviction order has been made in relation to it.  There is more information on possible charges and penalties in this section.

VIOLENCE RESTRAINING ORDERS (VRO)

s.25 Who Can Apply for a VRO?

An application for a VRO can be made by;

  • The person seeking to be protected; or
  • A police officer on behalf of the person seeking to be protected; or
  • If the person sought to be protect is a child, the parent or guardian of a child welfare officer may apply on the child’s behalf; or
  • A guardian on behalf of the person seeking to be protected if that person has been appointed a guardian under the Guardian and Administration Act 1990(WA).

An application for a VRO is made to the Magistrates’ Court unless respondent is a child; in which case the application is made to the Children’s Court.  The person seeking the order makes the application at the relevant court during business hours.

s.20 Applications by Telephone in Some Circumstances

A telephone application can be made on behalf of the person needing the VRO in certain circumstances.  Such an application can only be made by an authorised person on behalf of the person requiring the protection of the VRO.  In most circumstances that authorised person will be a police officer.

Such an application can only be heard by an authorised magistrate who is satisfied that;

  • It would not be practical for the application to be made in person because of:
    • When or where the behaviour being complained of is occurring; or
    • The urgency of the application;

or

  • There is some other factor that justifies making a VRO as a matter of urgency without requiring the person to appear in person to make the application.

The authorised magistrate hearing the telephone application can:

  • Make a telephone order; or
  • Dismiss the application; or
  • Adjourn the application to a mention date in court.

If a telephone application for a VRO is dismissed, it does not prevent the person, or a police officer, making an application in person.

Such an application will be made in the absence of the respondent.  Because of this, if the magistrate makes a VRO that is longer than 72 hours in duration, it is considered to be an interim order.  Refer to Procedure When an Interim Violence Restraining Order (VRO) is Made for more details on this procedure.

s.11A When Can a  Violence Restraining Order (VRO) be Made?

A court may order a VRO if it is satisfied that;

  • The respondent (person against whom the application was made) has committed an act of abuse against the person seeking to be protected and the respondent is likely to commit an act of abuse against the same person again; or
  • The person making the application reasonably fears that the respondent will commit an act of abuse against the person sought to be protected;

and that making a VRO is appropriate in the circumstances.

s.3 What is an “Act of Abuse”?

An act of abuse is an “Act of Family and Domestic Violence” or an “Act of Personal Violence”.

s.6 What is an “Act of Family and Domestic Violence”?

This means one of the following acts when it is committed against another person with whom the person is in a family or domestic relationship:

  • Assaulting or causing personal injury to the person or threatening to do so;
  • kidnapping the person or depriving them of their liberty or threatening to do so;
  • Damaging the person’s property (including any animals the person owns) or threatening to do so;
  • Behaving in an ongoing manner that is intimidating, offensive or emotionally abusive to the person;
  • Pursuing the person or a 3rd party – or having someone else do the same – with the intention of intimidating the person.  This includes if the act of pursuing could reasonably be expected to intimidate the person and that the person was actually intimidated even if the respondent did not have that specific intention;

s.4 What is a “Family or Domestic Relationship”?

This means a relationship between two people where;

  • The people are or were married to each other or in a de facto relationship; or
  • The people are or were related to each other.  This includes where the person is or was related to the other person’s current or former spouse or de facto spouse; or
  • One person is a child who;
    • ordinarily lives or lived with the other person; or
    • regularly stays with or stayed with the other person; or
  • One person is or was a child  of whom the other person is a guardian; or
  • The people have or have had an intimate personal relationship with each other; or
  • The people have or have had personal relationship with each other: this is a relationship which is classified as domestic where the actions of each party affect or affected the other party.

In determining if two people are related to each other, their relevant cultural, social and religious backgrounds are considered.

s.6 What is an “Act of Personal Violence”?

This means one of the following acts when it is committed against another person with whom the person is NOT in a family or domestic relationship:

  • Assaulting or causing personal injury to the person or threatening to do so;
  • kidnapping the person or depriving them of their liberty or threatening to do so;
  • Pursuing the person or a 3rd party – or having someone else do the same – with the intention of intimidating the person.  This includes if the act of pursuing could reasonably be expected to intimidate the person and that the person was actually intimidated even if the respondent did not have that specific intention;

If the person who commits the act/s imagines they are in a personal relationship with the person sought to be protected, the above definition is expanded to include the behaviour within the definition of acts of family and domestic violence.

s.26 Does the Respondent Have to be in Court When the Application is Made?

When a person makes an application to the court for a VRO the person can elect to have the first hearing for the application heard in the absence of the respondent.  Alternatively the applicant can request that the application proceed directly to a defended hearing.  Refer to Procedure at Final Order Hearing for more information on this procedure.

s.29 Procedure if Application is made in Absence of Respondent

If the applicant elects to have the first hearing in the absence of the respondent, the court may;

  • Make a VRO; or
  • Dismiss the application; or
  • Adjourn the application; or
  • Discontinue the application if the applicant no longer wants to pursue the application.

If the application is adjourned the court will summons the respondent to attend on the next occasion.

If the court makes a VRO which is to remain in force for more than 72 hours, it is considered to be an interim order.  Refer to Procedure When an Interim VRO is Made for more details on this procedure.

s.63 Making Restraining Orders During Other Proceedings

A court may make a restraining order restraining a person during proceedings for a bail application being made by that person.  A court may also make a restraining order during proceedings under the Family Court Act 1997 (WA) or the Family Law Act 1975(Cth).

In order to make such orders the court must be satisfied that the criteria previously discussed are met which warrant the order being made.

s.63A Restraining order to be made if certain violent personal offences committed

If a court convicts a person of a “violent personal offence”, it must impose a VRO upon the person being convicted.  This order is made for the protection of the victim of the offence for which the person was convicted.  However, if the victim of that offence objects to such an order being made, the court cannot make the order.

If a court makes such an order, the order is to remain in force for the remainder of the life of the person to be restrained.

A “violent personal offence” is:

  • Attempt to unlawfully kill; or
  • Causing grievous bodily harm; or
  • Sexual penetration without consent; or
  • Aggravated sexual penetration without consent; or
  • Sexual coercion; or
  • Aggravated Sexual Coercion.

s.31 Procedure When an Interim Violence Restraining Order (VRO) is Made

As previously discussed, if a VRO is made without the respondent being present and is to remain in force for more than 72 hours, the VRO is an interim order.  The procedure when an interim VRO has been made can be summarised as follows:

  • The Court will serve a copy of the interim VRO upon the respondent;
  • The respondent must complete the endorsement copy of the order within 21 days and return it to the registrar at the court of issue.  On this copy, the respondent can indicate if they object or do not object to a final VRO being made:
    • s.32 If the respondent indicates they do not object to a final VRO being made, a final order will be made in the same terms as the interim VRO;
    • s.33 If the respondent indicates that they object to a final VRO being made, the court will fix a hearing date.  On that date the court will hear any evidence and determine the matter pursuant to s.11A – see When Can a VRO be Made?

Procedure at Final Order Hearing

At a final order hearing the court will hear evidence from any relevant party and determine if a final Violence Restraining Order (VRO) is to be made:  see When Can a VRO be Made?

s.42 Attendance or Non-Attendance of Parties at Final Order Hearing

If the applicant does not attend the final hearing, the court may:

  • Dismiss the application if satisfied that the applicant was notified of the hearing date; or
  • Adjourn the hearing to another date.

If the respondent does not attend the final hearing but the applicant does attend, the court may:

  • Hear the matter in the absence of the respondent if the court is satisfied that the respondent was aware of the hearing; and
  • If there is an earlier restraining order in place in relation to the matter, the court can make a final VRO in the same terms as the earlier order.  The court can also take into account any new matter that is raised by the applicant at the hearing when making the order; or
  • Adjourn the hearing to another date.

s.43 Making a final VRO

If a court orders a final VRO at a final order hearing, it can impose such terms as the court considers appropriate in the circumstances: see What Restraints Can be Imposed on a Respondent to a VRO?

If a court believes that a Misconduct Restraining Order is appropriate it can make that order instead of the VRO.  Conversely, in an application for a Misconduct Restraining Order, if a court believe it is appropriate to order a VRO, it can make such an order.

If, at the final hearing, the respondent consents to the order being made, the court can make the Order without satisfying itself pursuant to s11A.  Such consent does not constitute an admission by the respondent to any matter alleged by the applicant.

s.13 What Restraints Can be Imposed on a Respondent to a Violence Restraining Order (VRO)?

A court can impose any conditions it considers appropriate to prevent the respondent:

  • Committing an act of abuse against the person who is seeking to be protected, or if the person to be protected is a child, exposure to an act of abuse committed by the respondent; or
  • Behaving in a manner which could reasonably be expected to cause the person to be protected to fear the respondent will commit an act of abuse.

Some typical restraints that can be imposed on the respondent include, but are not limited to:

  • Being on or near premises where the person to be protected lives or works or other specified places if appropriate;
  • Approaching within a specified distance of the person to be protected;
  • Communicating or attempting to communicate by any means with the person to be protected;
  • Preventing the person to be protected from obtaining and using personal property which is reasonably needed by the person to be protected, even if the respondent is the owner of that property;
  • Causing any other person to do any of the things listed above.

A court can impose a restraint which prevents the respondent from going to or remaining at a specified place even if the respondent has a legal or equitable right to be at that place.  In such a situation the court is to ensure that any order made makes provision for either the protected person or the respondent to recover personal or other prescribed property from such specified place.

s.45 Firearms Order

Every VRO includes a restraint which prohibits the respondent from:

  • Being in possession of a firearm or firearms licence; and
  • Obtaining a firearms licence or firearm.

If the respondent is in possession of a firearm or firearms or a firearms licence the respondent must surrender them.

Under limited conditions a court may permit the respondent to possess a firearm or firearms licence if it is satisfied that:

  • The respondent cannot carry on their usual occupation without the firearm; and
  • The behaviour which led to the making of the VRO did not involve the use or threatened use of a firearm; and
  • The safety or perception of safety of any person is not likely to be adversely affected by the respondent’s possession of a firearm.

If a court permits the respondent to possess a firearm it must make the permission subject to any condition the applicant or person seeking to be protected requests unless the court considers the request to be unreasonable.

s.45 Can a Violence Restraining Order (VRO) be Varied or Cancelled?

An application to vary or cancel a VRO can be made by;

  • The person protected by the order; or
  • A police officer on behalf of the person protected by the order; or
  • The respondent to the order;
  • A parent, guardian or child welfare officer of a child that is protected by an order; or
  • A guardian of a person protected by an order who has had a guardian appointed under the Guardianship and Administration Act 1990(WA).

An application to vary or cancel a VRO is to be made to the court which made the original order.  The court will consider the application and:

  • Dismiss the application;
  • Grant a variation to the VRO as it considers appropriate; or
  • Cancel the VRO if asked to do so and it considers it appropriate.

If the application to vary the VRO includes a variation to extend the period of the order, the order in place cannot expire before the application is determined if the respondent to the order has been served with a summons in relation to the application to vary.

The court will summons the relevant parties to a hearing to determine the application to vary or cancel the order.

s.46 Procedure if Applicant to Vary or Cancel Order is the Person Bound by the Order

If a person bound by an order makes the application to vary or cancel the order, that person must be granted leave by the court to continue the application before the matter can be set down for a hearing.  This leave will be considered at a hearing which is held in the absence of the person protected by the order.

s.48 Attendance at Hearing for Variation or Cancellation of a VRO

If the person who made the application to cancel or vary the VRO does not attend the hearing, the court can:

  • Dismiss the application if it is satisfied the person was notified of the hearing; or
  • Adjourn the hearing to another date.

If a party who is summonsed to the hearing does not attend in answer to that summons, the court can:

  • Proceed to hear the application in the absence of the party who did not attend; or
  • Adjourn the matter to a later date.

A person who is protected by a VRO can request that any application to cancel the order be heard in the absence of the respondent.  If such a request is made, the court is to fix such a hearing.

s.30A POLICE ORDERS

A police officer can issue a Police Order (PO) which has the same effect as a VRO where the officer reasonably believes that:

  • It would not be practical for the application to be made in person because of:
    • When or where the behaviour being complained of is occurring; or
    • The urgency of the application;

or

  • There is some other factor that justifies making a VRO as a matter of urgency without requiring the person to appear in person to make the application.

and the police reasonably believe that:

  • A person has committed  an act of family and domestic violence and is  likely to commit such an act again; or
  • A child has been exposed to an act of family and domestic violence committed by or against a person with whom the child is in a family and domestic relationship and the child is likely to be exposed to such an act again;

or

the police officer reasonably believes that another person reasonably fears that;

  • A person will have an act of family or domestic violence committed against them; or
  • A child will be exposed to an act of family and domestic violence committed by or against a person with whom the child is in a family and domestic relationship;

and that making a PO is necessary to ensure the safety of a person.

A police officer can make a PO whether or not an application for a VRO has been made.

If a police officer has made a telephone application which was dismissed, the police cannot issue a PO.

The restraints that can be imposed in a PO are reflective of those that can be imposed by a court.  In making a PO, the police officer is bound to ensure that the order is the least restrictive of the personal rights and liberties of the person to be bound by the order as possible whilst at the same time ensuring the person to be protected is protected from acts of abuse.

s.30F Duration of a Police Order

A Police Order remains in force for 72 hours after it has been served on the person who is to be bound by the order.  It lapses if it cannot be served within 24 hours.

Police can specify a period shorter than 72 hours in the order if the police believe the shorter period is sufficient for an application to be made to a court.

Pursuant to s.30H, once a PO has been made, the police cannot extend or renew the order.  Another PO cannot be made in relation to the same facts.

S.34 MISCONDUCT RESTRAINING ORDERS

Misconduct Restraining Orders (MRO) are similar in nature to VRO’s in that they seek to restrain certain behavior of the respondent.  However, MRO’s are not appropriate where the behavior of the respondent involves acts of personal violence.  Also, MRO’s do not apply where the parties are in a family or domestic relationship.  If the parties are in such a relationship, a VRO will be appropriate.

The procedures as outlined above for VRO’s in relation to how final hearings will be conducted and the variation or cancellation of orders reflect the procedure in relation to MRO’s.

A court can make an MRO where it is satisfied that it is appropriate in the circumstances and that unless restrained, the respondent is likely to:

  • Behave in a way that could reasonably be expected to be intimidating or offensive to the protected person and that does actually intimidate or offend the protected person;
  • Damage property owned or possessed by the protected person; or
  • Behave in a manner that is likely to cause a breach of the peace.

s.38 Who Can Make an Application for an MRO?

An application for an MRO can be made in person by:

  • The person seeking to be protected;
  • A police officer on behalf of the person seeking to be protected; or
  • A parent, guardian or child welfare officer if the person sought to be protected is a child; or
  • A legal guardian if the person sought to be protected has a guardian appointed under the Guardian and Administration Act 1990(WA); or
  • If the order is sought for the protection of the public in general, a police officer can apply on behalf of the public generally.

An application for an MRO is made to the Magistrates’ Court or if the respondent is a child, the Children’s Court.

s.35 When Will a Court Consider Making a MRO?

When considering making a MRO the court will give primary consideration to the need to ensure:

  • The person to be protected is protected from intimidatory or offensive behaviour; and
  • Property owned or possessed by the person to be protected is protected from damage; and
  • The wellbeing of children who are likely to be exposed to the behavior of the respondent.

If an MRO is being considered on the grounds the respondent is likely to cause a breach of the peace, the primary considerations of the court is to seek to ensure the public is protected from breaches of the peace caused by the respondent and that children who may be exposed to the respondent’s behaviour are protected.

A court will also consider other factors it deems relevant in determining if an MRO should be ordered.  These include:

  • The accommodation needs of all parties;
  • Any other current legal proceedings involving any of the parties;
  • Any criminal record of the respondent;
  • Any similar previous behavior by the respondent towards the person seeking to be protected.

s.36 What Restraints Can be Placed on a Respondent to a MRO?

A court can impose any restraint it believes to be appropriate in order to prevent the respondent:

  • Behaving in a manner that could reasonably be expected to be offensive or intimidating; or
  • Causing damage to property owned or in possession of the person to be protected; or
  • Causing a breach of the peace.

Typical restraints that can be imposed include restraining the respondent from:

  • Being on or near any premises where the respondent lives or works;
  • Being on or near any other specified premises or locations;
  • Approaching within a certain distance of the protected person;
  • Communicating or attempting to communicate with the protected person in any way;
  • Being in possession of a firearm or applying for a firearms licence;
  • Causing another person to do any of the above; or
  • Engaging in behaviour of a particular kind either absolutely or at certain times or in certain places.

INTERSTATE RESTRAINING ORDERS

An interstate order can be registered in Western Australia.

If an interstate order is registered in WA, it has the same effect as it does in the State in which it was issued.

s.75 Who Can Apply to Register an Interstate Order?

An application to register an interstate order in WA can be made by:

  • The person protected by the interstate order;
  • A police officer on behalf of the person protected by the interstate order; or
  • A parent, guardian or child welfare officer if the person protected by the interstate order is a child; or
  • A legal guardian if the person protected by the interstate order has a guardian appointed under the Guardian and Administration Act 1990 (WA).

The respondent named in the interstate order does not need to be notified of the application to register an interstate order in WA.  Once the interstate order is registered the respondent cannot be notified unless the person who applies for the registration of the order in WA requests – in writing – that the respondent be informed.  This is to provide protection, if required, to the person protected by the order.

s.77 Effect of Registration on an Interstate Order in WA

Once an interstate order has been registered in WA, it has effect in WA in the same was as a final order made in WA.  It will operate on the same terms contained in the interstate order and will come into effect in WA on the day it is registered.  The WA court will notify the original court of the registration.

If an interstate order is varied or cancelled in the State in which it was originally ordered, that court will notify the WA court.  Once the WA court receives notification of the variation or cancellation, it takes effect in WA.

The person protected by the order can apply in WA to vary its operation in WA or cancel the registration in WA of the order.  If that occurs, the WA court will notify the interstate court.

FOREIGN RESTRAINING ORDERS

Foreign restraining orders from New Zealand, Canada, Ireland and the United Kingdom can be registered in Western Australia.

The procedures for registering, varying and cancelling registration of foreign orders in WA is the same as for interstate orders.

s.61 OFFENCES RELATING TO VIOLENCE RESTRAINING ORDERS (VRO) AND MISCONDUCT RESTRAINING ORDERS (MRO)

It is an offence to breach a VRO, police order or an MRO.  Any breach of any condition of an order is sufficient to constitute a breach.

s.61 Penalties

Breaching a Violence Restraining Order or Police Order

If a person breaches a VRO or a Police Order, the maximum penalty is:

  • A fine of not more than $6,000.00; or
  • Imprisonment for up to two years; or
  • Both a fine and imprisonment.

s.61A Penalties for Repeated Breach of Restraining Order or Police Order

If a person:

  • Is convicted of breaching a VRO or a Police Order; and
  • Has been convicted on at least two previous occasions within two years of the date on which the person is convicted;

the court must impose a sentence of imprisonment on the person.

The court only decide to not sentence a person to imprisonment if:

  • Imprisonment would be clearly unjust given the circumstances of the offence and the person; and
  • The person is unlikely to be a threat to the safety of a protected person or the community in general.

Breaching a Misconduct Restraining Order

If a person breaches an MRO, the penalty is:

  • A fine of up to $1,000.00.
Call Now ButtonCall
%d bloggers like this: