WA has new family violence laws
Watch this new infographic, WA has new family violence laws
, to learn important information about new family violence restraining orders (FVROs). FVROs give greater support to victims of family violence, especially children, and make people who use family violence more accountable. If you need an FVRO, call our Infoline
on 1300 650 579
to make an appointment to speak to a lawyer.
Getting an interim Family Violence Restraining Order is a new online self-help guide. It may help you if you need protection from violence or a threat of violence against you by a family member and you want to know how to apply for a family violence restraining order. The guide contains step by step practical information, including checklists and "how to" videos by experienced lawyers. Click here to register to view it.
The law that covers restraining orders in WA changed on 1 July 2017. 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 still apply. If you apply for a restraining order from 1 July 2017 the new law applies.
If you need protection from violence, a threat of violence, against you by a family member or any other behaviour by a family member that coerces or controls you or causes you to be scared you can apply for a family violence restraining order (FVRO).
If you are applying for the order you are called “the applicant” or the “person seeking to be protected”.
The person who you want the order against is called “the respondent” or if a restraining order is made, the “person who is bound”.
What is a family violence restraining order?
It is a court order against your partner, ex-partner or another family member, (eg uncle, son, grandfather,) designed to stop threats of violence or violence, behaviour that coerces controls, or causes you to be fearful.
It tells the offender to stay away from you and/or to stop behaving in certain ways towards you. The order can be worded to suit your situation.
There are other types of restraining orders:
- police orders
- violence restraining orders (VRO) (against a person you are not or have not been in a family relationship with), and
- misconduct restraining orders (MROs).
What is a police order?
Police may make an on the spot FVRO called a “police order” in situations of family violence.
The police order may be made for up to 72 hours. A 72 hour order lapses if it is not served within 24 hours. If you want an ongoing FVRO you will have to apply to the court yourself or ask the police whether they can apply for you.
What is family violence?
It is not just assault and physical violence.
Examples of family violence behaviour covered by the law include:
- hitting you
- threatening to hit you
- threatening to share or actually sharing intimate images
- holding you against your will
- not letting you have money when you depend on them for financial support
- causing death or injury to your pets
- damaging property you own or jointly own
- repeatedly sending you unwanted or offensive texts
- stopping you seeing or keeping in contact with friends, family or culture.
Even if the person gets someone else to do these sorts of things against you they will be taken to have committed family violence.
Who can apply for an FVRO?
You can apply for an FVRO against someone you are or have been in a family relationship with.
You are in a family relationship with someone if that other person is your:
- spouse or ex-spouse
- de facto or ex-de facto
- girlfriend/boyfriend or ex-girlfriend/ex-boyfriend
- child, step-child or grandchild
- parent, step-parent or grandparent
- your sibling or step-sibling
- relative or former relative.
If you are not sure whether you are or were in a family relationship with the person you want an FVRO against, seek legal advice.
An application can be made by:
- any person at least 16 years old seeking to be protected, or their guardian, if they have one
- the parent or guardian of a child or a child welfare officer (eg, a Department of Communities (Child Protection and Family Support Division) case manager) for a child or young person under 18 years of age, or
- a police officer for any child or adult.
How can I get an FVRO?
An application for an FVRO can be made:
- To the Magistrates Court if both the applicant and the respondent are adults.
- To the Magistrates Court or the Children's Court of WA if the person seeking to be protected is a child or young person under 18, against an adult respondent.
- To the Children's Court if the respondent is a child or young person under 18.
- Through a police officer who may apply for you by telephone. They usually only do this where doing it yourself is either not practical or the situation is urgent.
Ask at your nearest courthouse for the application form or, if there is no courthouse in your area, ask at the nearest police station. The application form can also be downloaded from the Magistrates Court of WA website.
Note: A restraining order cannot be made against a child less than 10 years of age.
Other ways to get an FVRO
If a person pleads guilty to, or is found guilty of certain criminal offences against you in the Magistrates Court, such as common assault, you can tell the court you want to be protected by an FVRO. Unless there are exceptional circumstances a court is able to make an FVRO.
What does getting an FVRO involve?
- The first time you apply your case is in a closed court. The respondent is not there (if you ticked the box in your application for it to be dealt with in their absence).
- If the respondent does not already know your address the court will not pass it on.
- The court may be made up of a magistrate, or in some places, local community members, who are justices of the peace.
- If an interim order is made the police will give it to (“serve it on”) the respondent. It does not come into operation until it has been served. This is when they will find out about your application.
- The respondent can object within 21 days of receiving the order from police
- The respondent can order a copy from the court of the transcript of what was said at the interim FVRO hearing.
- If the respondent objects, before the final hearing date you can apply to give evidence by closed circuit TV or behind a screen if you feel you would be unable to give evidence in front of the respondent well or at all or would be distressed or intimidated in open court. You can do this by lodging a Form 23 and affidavit in support at least 14 days before the hearing.
- If an interim order is not made (and the application is not dismissed) you can choose to go on with your application or not continue it.
Can an FVRO cover my children?
Yes your children can be covered by your FVRO – but you need to ask the court to include them AND you need to show the court:
- that the children have been exposed to family violence and they are likely to be exposed again, or
- that there are reasonable grounds to fear the children will be exposed to family violence.
The court also has to be satisfied that there are not special circumstances that would make the order inappropriate.
You can also apply for an FVRO for your children on a separate application form. You need to show the same things as if you wanted to add the children to your FRVO.
What does “exposed” to family violence mean for a child mean?
A child is exposed to family violence or personal violence if:
- the child sees or hears the violence, or
- otherwise experiences the effects of violence.
- overhearing threats of death or personal injury
- seeing or hearing an assault
- comforting or giving help to a person who has been assaulted
- cleaning up a place after property damage
- being present when police or ambulance officers attend an incident involving the violence.
What do I have to show to get an FVRO?
To get an FVRO you must satisfy the court that:
- the respondent has committed family violence against you and is likely to commit family violence against you in the future, or
- you, or a person who has applied for an order for you, has reasonable grounds to fear that the respondent will commit family violence against you.
If the court is satisfied in accordance with this test, the court must make an order unless there are special circumstances that would make the order inappropriate. Special circumstances do not exist simply because you, or the respondent, can apply, or have applied, for a particular family order.
If possible get legal advice before you make your application. You can contact Legal Aid WA’s Infoline on 1300 650 579 for information and referral.
What conditions can be included on an FVRO?
The restrictions or conditions on the order can be shaped to suit your circumstances/situation, for example:
- It does not have to mean the respondent will not be able to see their kids.
- You don’t have to cut the respondent’s contact with you completely unless you want to.
- You can sometimes live together even with an order but have restrictions on how the respondent can act towards you.
An FVRO can have conditions which stop the person bound from doing certain things such as:
- being on or near your home or place of work
- being on or near a certain place
- coming within a certain distance of you
- contacting or trying to contact you in any way, including texting, ringing, emailing or writing- even through other people
- contacting you in certain circumstances or in a particular way, for example, only by texting to make arrangements for contact with your children
- stopping you from using personal property you need
- behaving in certain ways
- being in possession of firearms, ammunition or a firearms licence.
An FVRO may also tell the person bound/respondent that certain behaviour and activities are unlawful, that is, they may break a criminal law.
Normally an FVRO prevents the respondent from having or getting a gun or a licence for a gun. Also, if a respondent already has a gun and/or a gun licence, they must give it up to the police.
If the court is not going to order that the respondent must give up their gun they should tell you.
How long does an FVRO last?
An interim FVRO stays in force until it is cancelled, dismissed or becomes final.
Unless varied or cancelled, a final FVRO against an adult usually lasts for 2 years, and up to six months against a child or young person. You can ask for an order against an adult to be longer if you prove it is necessary, or it can be shorter. If the respondent is in prison when the order is made, the time the order stays in force runs from when they are released from prison.
A criminal court can also make a lifelong FVRO in some circumstances.
What is a breach of a FVRO or police order?
A police order or an FVRO will prevent the person bound from doing certain things.
You should read the order carefully to know what behaviour is restricted.
If the person bound does something that the police order or FVRO says they can't do, they are "breaching" the order.
For example, if a police order or FVRO says the person bound is not allowed to communicate with you, the person bound must not:
- visit you
- call you on the phone
- send SMS or text messages to you
- send emails to you
- send letters to you
- send presents to you
- send messages to you, even through friends, family or your children.
You should report any breaches of a police order or an FVRO to the police.
Is an FVRO a criminal charge?
An FVRO itself is not a criminal charge. Notice of an FVRO does not go on the person bound's criminal record.
However, if a person bound by an FVRO breaches that order, they may be charged with the criminal offence of breaching an FVRO. A conviction for breach of an FVRO or a police order will go on their criminal record.
Breaches of an FVRO or a police order can result in fines of up to $6,000 or imprisonment for up to two years or both.
How does an FVRO affect children spending time with either parent?
An FVRO can be made for a child as the person protected or an FVRO for an adult as the person protected can be extended by the court to protect a child or children. Read the restraining order carefully as the court may include conditions about what contact the person bound by the order can have with their children.
What if there are family court orders in place regarding my children?
If the court making the FVRO does not have the power to adjust a family court order the court cannot make an order that conflicts with the family court order. The court that grants the FVRO can in some circumstances change or cancel any parenting orders made by a family court. You should get legal advice about your situation
Where can I get more information?
- Contact Legal Aid WA’s Infoline on 1300 650 579 between 9.00am and 4.00pm Monday to Friday for information and referral, or to be sent a copy of other information sheets on restraining orders. Click here to view and download these. You can also pick up a copy from your nearest Legal Aid WA office. These information sheets should be used with legal advice where possible.
- For 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:
- Perth FVPLS (Djinda Services) on (08) 9200 2202.
- Aboriginal Family Law Services on (08) 9355 1502 or 1800 469 246 (freecall) or go to its website: http://www.afls.org.au/ contact/ for the contact details of other AFLS offices in regional areas.
- Albany Family Violence Prevention Legal Service on (08) 9842 7751.
- Marninwarntikura Family Violence Prevention Legal Unit on (08) 9191 5284 or 9191 5417.
- Police support is available from your local police station on 131 444.
- Go to the Magistrates Court of WA website or any registry to get copies of any forms needed.
Last reviewed: 29/06/2017