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Restraining orders - Varying, cancelling, extending or appealing orders

 

This information covers:

  • the process for respondents in getting a final restraining order set aside in limited circumstances 
  • appealing a final restraining order
  • changing or cancelling a restraining order, and
  • correcting a minor error in a restraining order.

Can I get a final order set aside?

In very limited circumstances

  • if an interim violence restraining order (VRO) has been made final after you did not return the respondent’s endorsement copy to object within 21 days; or
  • you did not go to the final hearing and a final restraining order was made

you can apply to have the order set aside. Time limits apply.

How to apply to have an interim VRO made final set aside

If you did not object by sending notice of objection to the court within 21 days and an interim VRO became a final order you can apply to have the final order set aside.

  • You have to do this within 21 days of being notified that an interim VRO has become a final VRO.
    • An extension of time to apply is possible if the court thinks you have a reasonable excuse for applying late.
  • Complete a Form 14A Application to set aside final order under the Restraining Orders Act 1997 (WA) section 32(2).
    • Under the side heading Date of application if your application is :
      • within 21 days of being notified of the interim order becoming final tick the first box
      • outside 21 days tick the second box.
    • Under the side heading Application tick:
      • both boxes if you need to seek the permission of the court because you are late in applying to set aside the decision
      • the second box if you are applying within 21 days.
    • Under Grounds for application give your reasons for applying late and for not putting in an objection to the original application within 21 days. You need to show you had a reasonable cause (or reason).

What happens after I put in the application?

The registrar will set a hearing to be held in the absence of the person protected.

If you do not go to this hearing and the court is satisfied you knew about it, your application will be dismissed.

At the hearing:

  • If your application was made after 21 days, the court will firstly decide if you may have had a reasonable excuse for putting in your application late and if so, let you go ahead with your application.
  • If your application goes ahead, the court will then look at the grounds or reasons you put in your application and then either:
    • if it decides you may have had a reasonable cause for not putting in your notice of objection within 21 days, put off the hearing to allow the other party to oppose your application (the court will send them a summons); or
    • dismiss your application.

If your application is not dismissed, at the next hearing, the court will hear your application and decide:

  • if you had a reasonable cause to not return the notice of objection within 21 days and if so set aside the final order; or
  • dismiss your application.

What happens if the final order is set aside?

The court will make an interim VRO again if an interim order was in place. Usually it will have the same conditions as the original one. Check if any changes have been made.

The registrar will set a new final hearing date and let you know the date.  The court will re-hear the case.

You must go to this hearing if you want to have a say about why the order should not be made. For help in preparing see the Legal Aid WA Information sheets Preparing as a respondent for a restraining order hearing and Representing yourself as a respondent at a restraining order final hearing.

How to apply to have a final order set aside if you did not go to the final hearing

If your case was listed for a final order hearing and you did not go to court and the court made a restraining order you can apply to have the final order set aside.

  • You have to do this within 21 days of the order being served on you. An extension of time to apply is possible if the court thinks you have a reasonable excuse for applying to set aside late.
  • Complete a Form 14 Application to set aside decision (Section 43A).
    • Under the side heading Date of application if your application is:
      • within 21 days of first becoming aware of/being served with a copy of the order tick the first box
      • outside 21 days of first becoming aware of/being served with a copy of the order tick the second box.
    • Under the side heading Application tick:
      • both boxes if you need to seek the permission of the court because you are late in applying to set aside the decision
      • the second box if you are applying within time.
    • Under Grounds for application give your reasons for applying late and for not attending the final hearing.

What happens after I put in the application?

The registrar will set a hearing to be held in the absence of the person protected.

If you do not go to this hearing and the court is satisfied you knew about it, your application will be dismissed.

At the hearing:

  • If your application was made out of time, the court will firstly decide if you may have had a reasonable excuse for putting in your application late and if so let you go ahead with your application.
  • The court will then look at the grounds or reasons you put in your application and then either:
    • if it decides you may have had a reasonable reason to not go to the hearing (for example, you had not been served with the application) where the restraining order was made, put off the hearing to allow the other party to oppose your application (the court will send them a summons); or
    • dismiss your application.

At the next hearing, the court will hear your application and decide:

  • if you had a reasonable reason to not go to the final hearing and if so set aside the final order; or
  • dismiss your application.

Can I appeal against the making of a restraining order or a decision not to make a restraining order?

It is possible to appeal against a decision to:

  • make a final restraining order, and 
  • not to make a final restraining order. 

If you wish to lodge an appeal you should seek legal advice about:

  • whether you have a legal basis to appeal, and
  • what costs would be involved.

There are time limits for appealing so you should obtain legal advice straight away.

You can get information on how to appeal a Magistrates Court decision about a restraining order and the fees to start an appeal from the District Court of WA website.   

Can I apply to change or cancel a restraining order?

For respondents the court will only give permission to change or cancel a restraining order in limited circumstances.

The respondent/person bound can apply to the court to:

  • cancel, or
  • change the conditions of

an interim VRO or a final restraining order.

These people can also apply:

  • The person protected
  • A police officer for person bound (or for the public generally if the original order was for the benefit of the public generally)
  • If a child is the person protected, their parent/guardian/Department for Child Protection and Family Support (CPFS) case manager.

What sort of changes can be made?

These are some common orders that the court may make to cover situations where a person without such an order may possibly breach the restraining order made. These include:

  • Comply with a court order made under the Family Court Act 1997 (WA) and Family Law Act 1975 (Cth) allowing the person bound to live with, spend time with or communicate with a child or children named in that order.
  • Communicate with the protected person by email or SMS or text message solely to make arrangements to spend time with, or communicate with any child or children of yours and the person bound.
  • Participate in and go to court events in proceedings in which the person protected and you are parties or witnesses, and which complies with an order or direction of a court.
  • Go with a police officer to the protected person’s residence to collect your personal or other property.

Your circumstances may change after an order is made and then you may need to apply to vary the terms of your order. Get legal advice if you are unsure about your obligations under or the terms of a restraining order.

How do I apply to vary or cancel a restraining order?

Fill in a Form 8 Application to vary or cancel a restraining order. Under the heading Variation or Cancellation tick the box for what you want.

  • If you want the order changed write down the specific changes you want.
  • Under Grounds for Variation or Cancellation put the reasons you either want it
    • cancelled or
    • varied.
  • Lodge it with the Magistrates Court.

The court sentencing a person for the breach of a restraining order, if it is satisfied that the person protected helped in the breach, can vary or cancel the restraining order.

What happens after an application to vary or cancel is lodged?

For respondents/persons bound
The registrar will set a hearing date.

At the hearing the court will decide if you will get permission (leave) to continue your application. This hearing is held without the person for whose benefit the order was made being present.

If you do not go to this hearing and the court is satisfied you knew about the hearing your application will be dismissed. Otherwise it will be put off to another date.


What the court takes into account in deciding whether to give you permission to apply to change or cancel a restraining order

For a final order the court will give permission for you to keep going with your application if it is satisfied that:

  • There is evidence to support a claim that a person protected by the order has persistently invited or encouraged you to breach the order or has persistently tried to get you to breach the order;
  • There has been a substantial change in relevant circumstances since the order was made.

For an interim order variation the court will give permission for you to continue your application if it is satisfied that there is evidence:

  • the restraints are causing you serious and unnecessary hardship, and
  • that it is appropriate your application is heard as a matter of urgency.

Otherwise, the court will dismiss the application.

 

What happens if the court gives me permission to go ahead with my application?

The registrar will set a date for a hearing.

The person who is bound (or their parent/s or guardian or CPFS case manager if they are a child) will be sent a summons for the hearing by the court.

The police will be notified for a misconduct restraining order (MRO) made for the public generally.

If you do not go to this hearing and the court is satisfied you knew about it your application will be dismissed. 

 If the person protected does not come to the hearing (or the police with a MRO for the benefit of the public generally) and the court is satisfied they knew about it, the court will hear your application in their absence. Otherwise the hearing of the application will be adjourned.


For the person protected

If you apply to cancel the order you can ask for the application to be heard in the absence of the person bound by the order. Otherwise a summons will be sent to the person bound to attend.

The person protected can apply to change or extend the duration of the order. A Form 8 Application to vary or cancel a restraining order needs to be completed. The court will set a hearing date and a summons will be sent to the person bound.

The summons has to be served on the person bound before the order expires or else a new application for a restraining order will have to be made.

The respondent will need to go to court if they do not agree to the change or an extension of the order.

How do I apply to fix a small error?  

 

When a restraining order contains:

  • a clerical mistake
  • an error from an accidental slip or leaving something out
  • an important mistake in describing a person or something else covered by the order

either the person protected or the person bound can apply to the court to have the restraining order corrected. 

 

If the error is in a restraining order made in the Magistrates Court:

  • You need to fill in a Form 23 Application.
    • In the section NATURE OF ORDER SOUGHT fill in details of the error that has to be fixed.
  • Lodge the form with the court.

An application by a person bound will usually initially be heard in the absence of the person protected.

The court may then decide to adjourn the hearing and give notice of the hearing to the person protected.

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 VRO.

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?

See Undertakings in restraining order applications.

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 restraining order, or to vary or cancel a restraining order.
  • 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: 01/05/2014

Last Modified: 01/05/2014

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.