Family Violence Restraining Orders in Perth
A Restraining Order is a court order that restrains a person from committing family violence or personal violence against another person/s by imposing restraints on the respondent’s behaviour and activities. There are three types of restraining orders. These are Violence Restraining Orders, Family Violence Restraining Orders and Misconduct Restraining Orders. Courts can also make temporary restraining orders that can be made by the police under certain circumstances. This article discusses Family Violence Restraining Orders in Perth and the rest of WA.
A Family Violence Restraining Order (FVRO) restrains someone from committing family violence against a family member.
Getting Served With FVROs
If you have been served with an application for an Family Violence Restraining Order, it means that someone has commenced an FVRO application against you.
If you have been served with an actual FVRO, this means a court has already made a FVRO against you and you may be charged with a criminal offence if you breach its conditions.
What Is A Family Relationship?
Section 4 of the Restraining Orders Act 1997 defines the term ‘family relationship’ as a relationship between two persons:
- Who are, or were, married;
- Who are, or were, in a de facto relationship;
- Who are, or were, related;
- One of whom is a child who lives or lived with the other person or regularly stays, or stayed with the other person;
- One of whom is, or was, a child and the other is or was their guardian;
- Who have, or had, a personal relationship; or
- One of whom is the former partner of the other’s current partner.
When Can A Court Make An FVRO?
Courts have the power to make an FVRO when they are satisfied that:
- The respondent has committed family violence against the person seeking protection and is likely to do so again in the future;
- A person seeking to be protected, or a person seeking the order on their behalf, has reasonable grounds for believing that the respondent will commit family violence against the person.
What Is Family Violence?
Section 5A of the Act defines the term ‘family violence’ as violence, or a threat of violence, by a person towards a family member or any other behaviour that coerces or controls the family member or causes them fear.
Several examples are:
- Assault;
- Sexual assault or sexual abuse;
- Stalking or cyber-stalking;
- Damaging or destroying property;
- Repeated derogatory remarks;
- Causing death or injury to an animal that belongs to the family member;
- Unreasonably denying the family member financial autonomy;
- Unreasonably withholding financial support;
- Preventing the family member from making connections;
- Kidnapping or depriving the family member of their liberty;
- Distributing intimate images; or
- Causing any child in the family to be exposed to family violence.
Responding to an FVRO Application
If someone is applying for an FVRO against you and you do not wish to consent to the order, you should lodge an objection within 21 days. If an objection is not lodged, the interim order will be made final for two years.
If you disagree with an application for an FRVO that has been made against you, you should contact the court registry to obtain a copy of the application and affidavit. If an FVRO has been made in your absence and you disagree with it, seek legal advice. Do not breach the order.
Breaching A Family Violence Restraining Order in Perth
Under section 61(1) of the Act, a person who breaches an FVRO commits an offence. The maximum penalty is a $10,000 fine, imprisonment for two years, or both.
It is neither a defence to this charge, nor a mitigating factor, to argue that the protected person procured the respondent to commit a breach of the order. However, if the court is satisfied that the protected person incited or aided the breach, it is empowered to cancel or vary the order.
Third Strike Rule
Should the respondent to an FVRO have been convicted of two or more previous breaches of the FVRO, the court must impose a term of imprisonment.
Mutual Undertakings & Conduct Agreement Orders
An FVRO application can be resolved without the matter proceeding to a final hearing if the parties agree to a Conduct Agreement Order or an undertaking.
Restraining Orders During Criminal Proceedings
Section 63(1) of the Restraining Orders Act 1997 provides that the court can make a restraining order against a person who is being dealt with by a court for criminal charges, including when deciding a bail application or imposing a sentence.
Unless there are exceptional circumstances, where a person pleads guilty or is found guilty of certain criminal offences under the Criminal Code, an FVRO made be made against them. This includes suffocation & strangulation offences, wounding and similar acts, common assaults, assaults occasioning bodily harm, indecent assaults and stalking. These are ‘violent personal offences’ and the court may make an FVRO for the life of the person who committed the offence or for a shorter period.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.