Can I appeal a decision from a restraining order final order hearing?
It is possible to appeal against a decision made at a final order hearing. If you want to lodge an appeal, you should seek legal advice about:
- whether you have a legal basis to appeal the decision
- what costs may be involved.
As are time limits for when you can appeal a decision, get legal advice straight away. In some cases you may be given permission by the court to appeal out of time.
Can I to apply to have a decision to make a final restraining order set aside?
In limited circumstances you can. Time limits apply so get legal advice as soon as possible.
Can I ask the court to change the specific terms of a restraining order?
Either the person protected or the person bound can apply to have the terms of a restraining order changed or cancelled.
The following can also apply to change or cancel an order :
- A police officer for a person protected by the order.
- If a child is the person protected by the order, a parent, guardian of the child, or child welfare officer (eg a Department for Child Protection and Family Support case worker).
- If the person protected has a guardian under the Guardianship and Administration Act 1990 (WA), the guardian.
Note: if the protected person aids in the breach of their restraining order, the criminal court dealing with the breach has the power to vary or cancel the restraining order.
If the person protected by the order wants to have it changed or cancelled, they need to lodge an application at court. They may indicate that they wish to have the application heard in the absence of the person who is bound by the order. The registrar will fix a date for a hearing.
In other cases both parties will be sent a notice telling them the date to attend at court. On that date, both parties will give evidence about why the order should or should not be changed, and the magistrate will make a decision about it.
Note: a magistrate has the option of cancelling a restraining order at a hearing to change an order. A change should only be requested if it is necessary.
There are limited situations in which the court may give the person bound permission to apply to change or cancel a restraining order. If the person bound applies to have it changed or cancelled, they will be given another date to come back and explain why they should be able to have it varied. On that date the magistrate will decide whether to allow the application, and if allowed, both parties will be sent a letter telling them the date to come to court.
On that date, both parties will give evidence about why the order should or should not be varied, and the magistrate will make a decision about it.
Can I apply to cancel a restraining order that is currently in place?
Yes. The process to have a restraining order cancelled is the same as that for changing an order (see heading Can I ask the court to change the specific terms of a restraining order? above).
Can I apply to extend a restraining order that is currently in place?
Yes. The process for having a restraining order extended is the same as that for changing an order (see heading Can I ask the court to change the specific terms of a restraining order? above).
What if I have a violence restraining order (eg intervention order or apprehended violence order) from interstate and want it to operate in WA?
You will need to apply to have it registered in Western Australia. A form can be obtained from any Magistrates Court of WA registry or its website. A registered order operates in WA as if it was a final violence restraining order.
What if I have a family and domestic violence restraining order made by a court in WA and I am moving interstate?
Each Australian State and Territory has a procedure for registering family and domestic violence restraining type orders made by other courts in Australia. Check with the local or Magistrates Court in the State or Territory you move to for the forms and other documents you need to register your family and domestic violence restraining order.
What is an undertaking?
An undertaking is a promise to the court (either written or oral) by the person bound to act in a certain manner or not do certain things. An undertaking replaces any restraining order application or an interim violence retraining order (VRO) if both the person seeking the restraining order and the person bound by the restraining order agree to resolve the case in this way.
What an undertaking is not!
An undertaking is not:
- a court order
- enforceable by the police or by criminal charges
- a substitute for family court parenting or property orders.
Why are undertakings used?
Undertakings are an option that can be used to resolve VRO or misconduct restraining order (MRO) applications. Undertakings are used to end the court proceedings without the need for any further hearings.
How is an undertaking made?
Undertakings can be oral or written. Oral undertakings are given in court and recorded in the court transcript. Written undertakings should refer to the matter before the court (the court’s reference number can be obtained from a copy of the VRO, MRO or other court document), show the parties’ names, contain details of the agreement reached between the parties, including how long it will last, and be signed and dated by the parties.
The original undertaking is kept on the court file and each party should keep a copy. Written undertakings are preferred so the terms and conditions of the undertaking are clear and there is no need to obtain a copy of the court transcript to find out those terms.
Both parties must agree voluntarily to make an undertaking. You cannot be forced or coerced into making or accepting an undertaking. However, you may receive advice that it is in your best interests to make or accept an undertaking. This advice does not amount to coercion.
Either party, or their lawyer can offer undertakings. The other party’s lawyer may approach you and suggest an undertaking. You are under no obligation to speak with the other party’s lawyer but it may be in your best interests to do so.
Duty lawyers can help to negotiate and prepare undertakings at some courts.
When can an undertaking be made?
Undertakings can be made at any time during the proceedings before a magistrate hands down their decision at a final hearing of the application. Undertakings are commonly entered into in the period between the interim order being made and the final order hearing, or between the initial application and the mention or final order hearing.
What can an undertaking say?
The conditions undertakings include are usually very similar to the VRO or MRO they replace. They can contain:
- things that the person bound cannot do (eg, have contact by any means, or be near the other person or their home or place of work)
- things the person bound can do. This may include agreement to allow attendance at mediation, allow a method of contact to make arrangements for children or deal with a party's personal property.
Undertakings are flexible and can be worded to deal with most situations. However, they are not intended to be a substitute for Family Court property or parenting orders. Both parties can make undertakings if each has applied for a VRO/MRO against the other party. This is known as a mutual undertaking.
Undertakings are made on a “without admission of liability” basis that means the person bound is not admitting to any wrongdoing by agreeing to an undertaking. Also, undertakings cannot be used in other court proceedings with the exception of further VRO or MRO applications if the undertaking is breached.
You can download an example of an undertaking here. You may need legal advice on which conditions are needed in your case.
When are undertakings used?
Undertakings are used in various circumstances including:
- When the parties wish to avoid further hearings/proceedings and the associated financial and emotional costs.
- Where, in the circumstances of a particular matter, a final VRO or MRO is unlikely to be made. This most often occurs where there is little or no admissible evidence that can be put to the court in support of the application.
- Where a VRO may have an impact on a party’s employment.
- The parties agree, for whatever reasons, that an undertaking is appropriate.
Are undertakings binding?
Undertakings are recorded on the court file but they are not legally enforceable. There is no criminal offence of “breach of an undertaking”. However, as an undertaking is a promise voluntarily given to a court, the court expects that the promise will be kept.
What happens if undertakings are breached?
While there is no charge of “breach of an undertaking”, you can still call the police if an undertaking is breached. The police can still move a person along, issue a police order, or charge them if their conduct amounts to an offence.
If your undertaking is breached you may also re-apply for a VRO or MRO. You may use the breach of the undertaking to support your application, as well as any other evidence you may have. The court expects parties who have made a promise to keep that promise and frown upon breaches of undertakings.
Whether or not the other party will follow an undertaking is a key consideration in deciding if an undertaking should be entered into. Other considerations, such as the evidence available that can be used in court, may be of more importance in certain situations.
Should I get legal advice before agreeing to or signing an undertaking?
You should get legal advice on the nature and effect of any undertaking you are asked to sign before you agree to and sign the undertaking, replacing the VRO/MRO.
Where can I get more information?
- Contact a Magistrates Court of WA registry or go to its website for the forms you need to apply to set aside a VRO, or to vary or cancel a VRO.
- A community legal centre. Call (08) 9221 9322 to find the one nearest to you.
- The District Court of WA website has information on fees and procedures for appeals from restraining orders made in the Magistrates Court of WA when you are representing yourself.
- Contact Legal Aid WA's InfoLine on 1300 650 579 for information and referral. Information sheets on restraining orders are available including:
These should be used with legal advice.
Last reviewed: 14/03/2013