Changes to Restraining Orders (WA)

Context

In 2017, the Western Australian Parliament passed a law which saw major changes in the way victims of domestic violence are protected. Previously, there had been only two categories of restraining orders in Western Australia, being Misconduct Restraining Orders (MROs); and Violence Restraining Orders (VROs). Under the amendment, a third category of restraining order was introduced named family violence restraining orders (FVRO). Since the advent of FVROs, VROs can no longer be made against family members, but only against an individual to whom one is not related.

The introduction of FVROs represented a significant shift in Western Australia's approach to family violence protection, aligning with national reforms and recognising the unique dynamics of family relationships. These changes were implemented through amendments to the Restraining Orders Act 1997 (WA), which came into effect on 1 July 2017.

FVROs can be made against any family member, not only a partner or ex-partner. They can be made against a grandparent, aunt, uncle or in-law. FVROs are designed to give victims of family violence greater protection from actual violence or coercive or controlling behaviour by a family member. The definition of "family member" under the Act is comprehensive and includes current or former spouses, de facto partners, intimate personal relationships, relatives by blood or marriage, children, and people who live or have lived in the same household as family members.

What do the changes mean?

Presumption in Favour of Granting Orders

When dealing with an application for a FVRO, the Court must grant the order unless there are special circumstances which make such an order inappropriate. This contrasts with the test applied by the Court in determining whether to make a VRO, which is whether the order sought is appropriate in the circumstances. In effect, the new legislation sets up a scheme where there is a presumption in favour of the making of the order.

This presumptive approach under Section 61 of the Restraining Orders Act 1997 (WA) reflects the legislature's recognition that family violence often escalates and that early intervention through legal protection is crucial for victim safety.

Expanded Definition of Family Violence

Further, the amendments extend the definition of family violence to any behaviour that coerces or controls the family member or causes them to be fearful (Section 5A). The Act gives the examples of stalking, financially controlling a victim, or killing a pet as instances of this behaviour, none of which were explicitly included in the definition of family and domestic violence under the old legislation.

The expanded definition now encompasses emotional, psychological, economic, and technological abuse, recognising that family violence extends far beyond physical harm. This broader approach acknowledges patterns of coercive control that may not involve physical violence but can be equally damaging to victims.

Conditions and Duration

The Court can make particular conditions as part of a FVRO, including that the offender  undergo counselling. Like VROs, FVROs can extend to cover children in situations where they are either exposed to family violence or there are reasonable grounds to believe that the child will be exposed to such violence. FVRO can be made for any operational period, with no minimum or maximum period being prescribed in the legislation.

Perpetrators of family violence who have an FVRO application made against them can enter into a Conduct Agreement, by consent and without admissions, as an alternative to an FVRO being made. A Conduct Agreement is an enforceable agreement, a breach of which has consequences for the perpetrators.

Penalties for breaching Family Violence Restraining Orders

Standard Penalties

The maximum penalty for breaching a FVRO is a fine of $6000 and/or imprisonment. If the breach involves violence in the presence of a child, that is an aggravating factor. The amendments also specify that where a perpetrator breaches an FVRO for a third time the Court must impose a term of imprisonment as a penalty unless the Court considers that it would be unjust in the circumstances.

Mandatory Imprisonment for Repeat Offenders

Under Section 61I of the Restraining Orders Act 1997 (WA), courts are required to impose mandatory imprisonment for third-time breaches, reflecting the serious view taken of repeat violations. This provision aims to protect victims from persistent offenders and send a clear message about the consequences of non-compliance with court orders.

The legislation also provides for enhanced penalties where breaches occur in aggravating circumstances, such as in the presence of children or when the breach involves actual violence or threats of violence.

How to Apply for a Family Violence Restraining Order

Application Process

Applying for a FVRO in Western Australia is designed to be accessible and straightforward. Applications can be made at any Magistrates Court in WA by completing Form 1A under the Restraining Orders Act 1997. The application process does not require legal representation, though many applicants benefit from legal advice.

When making an application, applicants should provide detailed information about the alleged family violence, including dates, witnesses, and any evidence such as photographs, text messages, or medical records. The more comprehensive the information provided, the better the court can assess the need for protection.

Interim Orders and Urgent Applications

In urgent situations where there is immediate risk, interim FVROs can be granted on the same day as the application. These interim orders provide immediate protection while the matter awaits a full hearing. Interim orders typically remain in place until the final hearing, which must occur within 21 days of the interim order being made.

For situations outside court hours, police officers have the power to issue Police Family Violence Orders, which provide immediate protection until an application can be made to the court.

Differences Between FVRO, VRO, and MRO

Family Violence Restraining Orders (FVRO)

FVROs specifically address violence or threatening behaviour between family members. They operate under a presumption that the order should be granted unless special circumstances make it inappropriate. These orders recognise the unique dynamics of family relationships and the particular vulnerabilities that exist within family contexts.

Violence Restraining Orders (VRO)

VROs are now used exclusively for situations involving non-family members, such as neighbours, acquaintances, or strangers. The test for granting a VRO requires the court to determine whether the order is appropriate in the circumstances, which is a different standard from the presumptive approach used for FVROs.

Misconduct Restraining Orders (MRO)

MROs address behaviour that is unreasonable and seriously interferes with another person's use and enjoyment of their land or work. This might include persistent noise, harassment by neighbours, or other conduct that doesn't necessarily involve violence or threats but significantly impacts quality of life.

It remains to be seen what practical effect these amendments have in protecting victims of family violence and holding perpetrators accountable.

If you want to apply for an FVRO, you can attend any Magistrates Court and make the application by completing a simple form.

Frequently Asked Questions

Can I apply for a FVRO against a family member who lives interstate?

Yes, you