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Misconduct restraining orders - court process

 

Who is the applicant and who is the respondent?

If you are applying for the misconduct restraining order (MRO) you are called the applicant or the person seeking to be protected. The person you want the MRO against is called the respondent or, if the order is made, the person bound by the MRO.

Who can apply for a misconduct restraining order?

Any person who wants to be protected can apply for a MRO. A guardian or a police officer may also apply for you.

If you are a child, the police or a parent, guardian or child welfare officer (eg a Department for Child Protection and Family Support case worker) can also apply for a MRO for you.

Is there anyone who cannot be bound by a MRO?

A child under the age of ten years old cannot be bound by a MRO.

Where can I apply for a MRO?

You can apply for a MRO in person at the Magistrates Court of WA or, the Children's Court of WA if the respondent is a child or young person aged under 18.

If possible you should get legal advice before you make your application. You can call Legal Aid WA's InfoLine on 1300 650 579.

When does a MRO come into force?

The MRO comes into force at the time it is served on the respondent, or if a later time is specified in the order, at that time. If the MRO has not been served, it is not in force.

If the respondent is in court at the time the order is made, the order is taken to have been served.

How long does a MRO last?

A MRO stays in force against :

  • an adult for whatever time is specified in the order or one year if no time is specified
  • a child or young person under 18 years of age for whatever time is specified in the order but it can be no longer than six months.

What happens in court when I apply for a MRO?

When you apply for a MRO at court, the registrar will set a court date for you and respondent to attend together. This court date is usually a mention/callover hearing. The court will send a notice in the mail to you and the respondent with the court date.

Before the next hearing, you should:

  • Phone the court to check if the next court date is for a mention/callover hearing or for a final order hearing.
  • Get legal advice. You can contact the Legal Aid WA's InfoLine on 1300 650 579 for referral. 

Mention/callover hearing

You do not need to bring witnesses to the mention/callover hearing. On that day the magistrate will want to:

  • Check if you still wish to go ahead with applying for, and/or the respondent is objecting to, the MRO.
  • Check how many witnesses you will have at the final order hearing.
  • Decide how long the final order hearing may take.

The magistrate will then tell you the date you must both come back for the final order hearing.

 

Final order hearing

For the final order hearing, you need to bring any witnesses you have and plan to be at the court for at least a couple of hours.

If you are the applicant, you must come prepared to tell the court why you need the MRO to be made.

The respondent is likely to come prepared to tell the court why they think the MRO is not needed.

What must be proven for a MRO to be granted?

The court can make a MRO if it thinks that without it, the respondent is likely to:

  • act in a way that could reasonably make you feel intimidated or offended and would in fact actually intimidate or offend you, or
  • cause damage to your property or property you have with you, or
  • act in a way that is, or may lead to, a breach of the peace

AND the court thinks a MRO should be granted in the circumstances.

A breach of the peace is a legal concept meaning something that disturbs the public peace. For example:

  • Regularly screaming and shouting in a public place.
  • Protesting in a way that prevents people from carrying out their work.
  • Intimidating people who are trying to use a public open space.

What will the court take into account when deciding whether to grant a MRO?

Before making a MRO the court has to think about:

  • protecting the applicant from the respondent's intimidating and offensive behaviour
  • protecting the applicant's property
  • the wellbeing of any children
  • the need to ensure that the public is protected from breaches of the peace
  • where the applicant and the respondent have to live
  • how the respondent will suffer if the order is made
  • any other legal proceeding the applicant or the respondent are involved in
  • the applicant's and respondent's criminal record (if any)
  • whether the respondent has ever acted in a similar way in the past to any person
  • anything else the court thinks is relevant.

Before making a restraining order against a child that affects their care and wellbeing the court has to be satisfied that appropriate arrangements have been made for their care and wellbeing.

What are my options if I am a respondent to a MRO?

If you have received a summons to a MRO hearing, you can:

1. Agree to the MRO being made final

  • You do not need to go to court if you agree to the MRO.
  • The court will hear the application in your absence and decide if an order should be made.
  • If it is made in your absence it will be delivered to the police for service on you.
  • You can go to the mention hearing and consent to a final order being made. Consent does not mean you admit you did any or all of the things alleged.

2. Object to the MRO being made final

  • If you object you will need to go to court on the date the court has advised.
  • At the mention hearing a future final order hearing date will be set.

At court you may be able to settle the matter by making an undertaking. For more information on undertakings see Restraining orders - varying, cancelling, extending or appealing orders.

 

3. Do nothing

  • In this case a MRO may be made against you. The applicant will tell the court why they want the order. The court will decide if an order is needed.
  • If it is made in your absence it will be delivered to the police for service on you.

Do I need to see a lawyer?

As an applicant or a respondent, you should get legal advice so that you understand:

  • the legal process and what it means to you
  • whether you might have to pay legal costs
  • how to represent yourself if you don't have a lawyer to represent you.

Legal Aid WA or your local community legal centre may be able to assist you with legal advice.

What do I need to do if I am representing myself in my application?

  • Gather all the information you can.
  • Keep all your paperwork together in a safe place.
  • Think carefully about your reasons for wanting the MRO and why the respondent objects to the MRO being made final.
  • Arrange for your witnesses to come to court for the hearing. You should get legal advice about this as costs are involved.
  • Get advice from Legal Aid WA about how to summons witnesses to court so that you make sure that they come.
  • Get information from Legal Aid WA about the court procedure at the final order hearing.
  • If you want to summons a child as a witness or a child to give oral evidence, unless your case is in the Children's Court, you must ask the permission of the court. There has to be a very good reason to have a child as a witness. You need to ask for permission before the final hearing date. You should get legal advice about this.
  • Ask Legal Aid WA to send you information sheets that might help you to prepare and represent yourself. These should be used with legal advice. Information sheets that may help you prepare for and represent yourself as a respondent at a final order hearing include :

How should I behave in court?

  • Be on time.
  • Dress neatly.
  • Do not have your mobile phone or pager or sunglasses on in court.
  • Bow to the magistrate when you enter the courtroom.
  • Call the magistrate "Your Honour".
  • Make childcare arrangements before going to court. Contact the court at least a month before the final hearing date to see if they can help with childcare.

What happens if I didn't go to a court hearing and the court made a decision without me being there?

As an applicant or as a respondent, if for some reason:

  • you did not go to the hearing
  • you did not know the hearing was on

you may be able to ask the court to hear the matter again and change the decision to grant or not to grant an order.

You must be able to show you had good reason for not being at court.

If you are not sure how to do this, get legal advice immediately.

For information on how to change or cancel a MRO that have already been made final, go to Restraining orders - varying, cancelling, extending or appealing orders.

Will I have to pay costs for going to court?

If the other party is represented by a lawyer, the other party's lawyer can ask the court to award costs against you. If the court awards costs it means that you will have to pay the applicant's legal costs.

If the MRO is granted, the applicant's lawyer may ask for the court to order that the respondent pay for the applicant's legal costs.

If the MRO is no granted, the respondent's lawyer may ask for the court to order that the applicant pay for the legal costs. In this case, the applicant will only have to pay the respondent's legal costs if the court decides that the application was "frivolous or vexatious".  An example of this might be if your case was so weak it was never likely to succeed.

Where can I get more information?

Last reviewed: 19/04/2013

Last Modified: 16/05/2013

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.