If you are in Western Australia and have been the victim of violent or inappropriate behaviour, you may want to consider applying for a restraining order through the police or at the Magistrates Court. A restraining order helps to stop a person from committing violent or inappropriate acts against you by placing limits on what they can do. For example, a Violence Restraining Order (“VRO”) may prevent another person from coming within a certain distance of you, or from communicating with you.
The Restraining Orders Act 1997 sets out the types of restraining orders which can be granted. There are 2 types of orders and they differ in purpose. They are Violence Restraining Orders (VROs) and Misconduct Restraining Orders (MROs).
Violence Restraining Orders
A Violence Restraining Order protects a person from “acts of abuse”, which under section 6 of the Restraining Orders Act 1997 includes (but is not limited to) assault, kidnapping, destruction of property, and behaviour that is threatening or intimidating. The Order takes the form of a brief document stating who the parties are and what the person who is bound cannot do.
To obtain a VRO you must personally apply for it. However, in some situations where family or domestic violence has occurred a Police Officer may apply for a Violence Restraining Order (VRO) on your behalf. This will usually result in the issue of a Police Order which has a similar effect to a VRO but only lasts for 72 hours.
Misconduct Restraining Orders
A Misconduct Restraining Order can be used in instances where another person’s behaviour towards you falls short of physical violence but still makes you feel intimidated, causes damage to your property or involves a breach of the peace. In such applications, the Court must be convinced that such an Order is necessary. The Court will consider the consequences of the other person’s behaviour on you and balance that against their right (if any) to do those particular acts. The Court process for a MRO application is similar to that for a VRO. At a Final Order Hearing, the Magistrate can grant a VRO even if the application was for a MRO.
The VRO Application process
If you require a VRO, you can make an application as an Applicant at any Magistrates Court in Western Australia. Your matter will then be scheduled for a first hearing (a “mention hearing”), normally in front of a Magistrate in Court. If you are in fear of the Respondent you can apply for the hearing to be held in the absence of the Respondent. This is known as an Ex Parte Hearing. At the hearing, you will need to convince the Court that there are grounds for your application. Usually this will involve you describing physical acts or threats done by the Respondent. If the Magistrate believes a restraining order is necessary, they will grant an Interim Order which is temporary and normally lasts for 6 months or until a Court makes a final decision regarding your application.
The Court will then take steps to serve the Order on the Respondent. The Respondent is given 21 days to object to the Order.If this occurs, the Respondent is indicating that they want to defend the application and the matter will then proceed to a Final Order Hearing. If the Respondent does not object to the application, the VRO will be made final and will normally last for 2 years.
What the Court considers in determining whether to grant a VRO
The Final Order Hearing involves a trial before a Magistrate where you – if you are the Applicant – are required to prove that a VRO is necessary to protect you from the Respondent.
Section 11A of the Restraining Orders Act 1997 states that the Court may grant a VRO if the respondent has committed an act of abuse against you, and unless restrained, is likely again to commit such an act, or you reasonably fear that the respondent is likely to commit an act of abuse against you. The court must also be convinced that making a violence restraining order is appropriate in the circumstances.
The Restraining Orders Act 1997 distinguishes between “family or domestic violence” (which occurs in “family or domestic relationships”) and “personal violence”. Family or domestic relationships include married couples, de-facto couples, parents and children, relatives and persons who are intimately close. The main difference between “family or domestic violence” and “personal violence” is that the first also includes instances of emotionally abusive or intimidating behaviour and damaging of property.
The Court, in considering whether a VRO is appropriate in the circumstances, will look at factors such as whether the Order is likely to stop the behaviour, hardship caused by the Order on the Respondent and the well-being of children who may be affected by the Order.
Breaching a Violence Restraining Order or Misconduct Restraining Order
Although a VRO will not appear on the criminal record of a “party bound”, it is an offence to breach the terms of a VRO. If the Respondent in a VRO does any act which is not allowed under the Order, you should report the act to Police.
Section 61 of the Restraining Orders Act 1997 states that the penalty for breach of a VRO is fines of up to $6,000, and imprisonment for up to two years or both. The breach will be considered more serious if it involves a child being exposed to an act of violence.The penalty for breaching a Misconduct Restraining Order is $1000.
If a repeat offender has been convicted twice before of breaching a VRO, then on the third occasion if they are found guilty of a breach, the penalty must involve a period of imprisonment. This is known as mandatory imprisonment.