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Restraining orders - Varying, cancelling, extending or appealing orders

Restraining orders - Varying, cancelling, extending or appealing orders

 
The law that covers restraining orders in WA changed on 1 July 2017. Many of the forms used also changed on that date.
 
If you made an application for a violence restraining order (VRO), or to change a VRO, before 1 July 2017 some of the previous law will apply. If you apply for a restraining order from 1 July 2017 the new law applies. 
 
The forms referred to below are the ones in use from 1 July 2017 (where applicable the  previous ones are in brackets).
 
Contact the Magistrates Court of WA or Children's Court of WA to get a copy of any forms needed.
 
This information covers:
  • the process for respondents, in limited circumstances, to apply to have a final restraining order set aside. 
  • appealing a decision about a restraining order.
  • changing or cancelling a restraining order.
  • correcting a minor error in a restraining order.

Can I get a final order set aside?

In very limited circumstances:
  • if an interim family violence restraining order (FVRO) or 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 a final FVRO or VRO set aside if you did not lodge an objection within 21 days
  • You must apply to the court within 21 days of being notified that an interim FVRO or VRO has become a final FVRO or VRO.
  • An extension of time to apply is possible if the court thinks you have a reasonable excuse for applying late.
  • Complete a Form 17 Application to set aside final order under the Restraining Orders Act 1997 (WA) section 32(2). (Prior to 1 July 2017 a Form 14A) A copy can be obtained from the court registry.
    • Under the side heading Details of final order tick the FVRO or VRO box as applicable.
    • 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 reasonable cause (or reason).

What happens after I put in the application?

The registrar will set a hearing. Only you are required to attend this hearing. The person protected by the FVRO or VRO will not attend.
 
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 to set aside the final FVRO or VRO was made outside of 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 is allowed to go ahead, the court will then look at the grounds or reasons you have put in your application. 
  • If the court decides:
    • you may have had a reasonable cause for not putting in your notice of objection to the FVRO or VRO within 21 days, it will put off the hearing and send a summons to the protected person to inform them of the new hearing date to allow them to oppose your application.
    • you did not have a reasonable cause for not putting in your notice of objection to the FVRO or VRO within 21 days it will dismiss your application.
If your application is not dismissed, on the next hearing date the court will hear your application to have the final FVRO or VRO set aside. You must attend. The protected person is also likely to attend if they want to oppose your application.
 
If the court decides:
  • You had reasonable cause for not putting in the notice of objection within 21 days it will set aside the final order.
    • The court will make an interim order again if an interim order was in place. Check if the terms or restraints are the same as the first one.
    • The registrar will set a new final hearing date and let you know the date.
    • You will need to go to this hearing (see the Legal Aid WA information sheets Preparing as a respondent for a restraining order final hearing and Representing yourself as a respondent at a restraining order final hearing).
  • You did not have reasonable cause for not putting in your objection to the FVRO or VRO outside of 21 days, it will dismiss your application.

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

You must apply to have the final FVRO/VRO set aside within 21 days of the final FVRO/VRO 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 18 Application to have decision set aside under Section 42 (prior to 1 July 2017 a Form 14). A copy can be obtained from the court registry.
    • Under the side heading Order to which this application relates tick the FVRO or VRO box as applicable.
    • 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 date.  Only you are required to attend this hearing. The person protected by the FVRO/VRO will not attend.
 
If you do not go to this hearing and the court is satisfied you knew about it, your application to have the FVRO/VRO set aside will be dismissed.
 
At the hearing: 
  • If your application was made outside of 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 is allowed to go ahead, the court will then look at the grounds or reasons you put in your application why you say the final order should be set aside.
  • If the court decides you may have had a reasonable cause to not go to the final FVRO/VRO hearing (eg, you had not been served with the application) it will set another hearing and send a summons to the person protected to inform them of the new hearing date. 
  • If the court decides you did not have a reasonable cause for missing the final FVRO/VRO hearing it will dismiss your application. The final FVRO/VRO will remain in place. 
At the next hearing, the court will hear your application to have the final FVRO/VRO set aside. You will need to attend. The person protected may also attend.
  • If the court decides you had a reasonable cause to not go to the final FVRO/VRO hearing it will set aside the final order.
    • The court will make an interim order. Usually it will have the same conditions as the original one. Check if any changes have been made.
    • The registrar will fix a new hearing date for the court will re-hear the case.
    • You must go to this final FVRO/VRO 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.
  • If the court decides you do not have a reasonable cause for not attending the final FVRO/VRO hearing, it will dismiss your application.

Can I appeal against a decision about a restraining order?

It is possible to appeal against a decision to: 
  • dismiss a telephone application for a temporary (interim) restraining order
  • dismiss application made in the absence of the respondent for a temporary (interim) restraining order
  • make, vary or cancel a final order
  • refuse to make, vary or cancel a final order
  • make any other order in relation to a final 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?

The person protected can apply to change (including to extend the duration of the order) or cancel the 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 FVRO/VRO or a final restraining order.
 
These people can also apply:
  • The person protected
  • A police officer for the person protected or the 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 of Communities (Child Protection and Family Support) (DOC (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 only 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 12 Application to vary or cancel a restraining order (prior to 1 July 2017 a Form 8).
 
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.
Also 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. If this applies to you, you can ask the court to consider doing this.

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

For the respondents/person 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; or
  • 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 DOC (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 an 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.
 
A Form 12 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.
 
If you are applying to change the order, including to extend the duration of the order, the summons has to be served on the person bound before the order expires. Otherwise 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.

Can a restraining order made interstate apply in WA?

The person protected, or a police officer for them, can apply to have an interstate order made under an equivalent law registered in Western Australia. You need to fill in and file a Form 15 (prior to 1 July 2017 Form 12). You can get the from any Magistrates Court in WA or the Court's website.
 
This application for registration does not have to be served on the person bound.
 
The person bound will not be given notice of the registration unless the person who applied for registration has requested in writing that you be given notice.
 
A registered order operates in WA as if it were a FVRO or VRO which is a final order. This means it is a breach if it is not followed.

Can a restraining order made in WA apply interstate?

In South Australia, Tasmania, Victoria, Queensland, New South Wales, the ACT and the Northern Territory you will need to apply to have the WA order registered for it to be in force.
Check with the court in the State or Territory where you want it registered for what forms and other information is needed to apply for registration.
 

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. Click here to view and download these information sheets.  These should be used with legal advice.
  • Family Violence Prevention Legal Services (FVPLSs) offer legal and counselling services for victims of family violence and/or sexual assault who are Aboriginal or Torres Strait Islander peoples, or whose partner or children are Aboriginal or Torres Strait Island peoples. Contact:
    • Djinda Services on (08) 9200 2202 for legal information and advice. 
    • the Aboriginal Family Law Services (AFLS) on (08) 9355 1502 or 1800 469 246 (freecall) or go to this website: http://www.afls.org.au/ for the contact details of other AFLS offices in regional areas.
    • the Family Violence Prevention Legal Service in Albany on (08) 9842 7751.
    • the Marninwarntikura Family Violence Prevention Legal Unit on (08) 9191 5284.

Last reviewed: 29/06/2017

Last modified: 1/07/2017 9:31 AM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.