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Responding to a restraining order application

Responding to a restraining order application

 

The law that covers restraining orders in WA changed on 1 July 2017. If  an application for a violence restraining order (VRO), or to change a VRO, was made before 1 July 2017 some of the previous law will apply. For applications for restraining order made from 1 July 2017 the new law applies.
 
This information is for people who have received:
  • an interim (temporary) family violence restraining order (FVRO), or
  • an interim (temporary) VRO or
  • a summons to go to court for a restraining order hearing.

Who’s who in restraining orders

The person applying for a restraining order is called the "applicant” or the “person to be protected”.
The person who has a restraining order application made against them is called the “respondent” or if the order is made, the “person bound”.

What are the types of restraining orders?

Family violence restraining order

An FVRO is a court order against a person in a family relationship (eg as the partner, ex-partner or another family member) designed to stop threats of violence or violence, or other sorts of behaviour that coerce or control the applicant, or cause them to be scared.

How do I know if I am in a family relationship?
Family relationship includes where the other person is:
  • your spouse or ex-spouse
  • your de facto or ex-de facto
  • your girlfriend/boyfriend or ex-girlfriend/ boyfriend
  • someone you have had an intimate personal relationship or other personal relationship with
  • your child, step-child or grandchild
  • your parent, step-parent or grandparent
  • your sibling or step-sibling
  • a person you were or are related to.
Violence restraining order
A violence restraining order (VRO) is a court order made to protect an applicant who is in a non-family relationship who fears that an act of personal violence is likely to be committed against them in the future by the respondent or person to be bound.
 
What is personal violence?

Personal violence means one of the following acts that a person commits against another person with whom they are not in a family relationship:
  • assaulting or causing injury
  • kidnapping
  • depriving the freedom of the person
  • threatening to do any of the above
  • stalking.
Other acts against may be personal violence if the person imagines they are in a personal relationship with the applicant.

Police orders

Police may make an on the spot violence restraining order called a “police order” in situations of family violence.
The police order may be made for up to 72 hours.
 
Misconduct restraining order
A misconduct restraining order (MRO) is a court order that is made to protect someone who feels:
  • intimidated or offended by another person’s behaviour, or
  • thinks that the other person is likely to damage their property, or
  • that the other person is likely to act in a way that would be a breach of the peace.

What restrictions can be imposed by the restraining order?

An interim or final restraining order will stop you from doing certain actions such as:
  • being at or near the person bound’s home or place of work
  • being at or near a certain place
  • coming within a certain distance of the person bound
  • contacting or trying to contact the person bound - even through other people
  • stopping the person bound from using property
  • behaving in certain ways
  • being in possession of firearms, ammunition or a firearms licence.
An FVRO or VRO may also inform you that certain behaviour and activities are unlawful, that is, they may break a criminal law.

What happens next?

By now you have received either:
  • A summons from the police asking you to appear in court to answer an application for a restraining order (this is not a restraining order), or
  • An interim FVRO or VRO (this is a restraining order) that is in force until the court makes a decision about whether a final restraining order should be made for a longer period of time.
Read your paperwork carefully.
 
What are my options if I have received an interim FVRO or VRO?
 
An interim FVRO or VRO is in force once it has been served on you = you can breach it if you do not comply with it.
 
If you have received an interim FVRO or VRO your options include:
 
1. Agreeing to the FVRO/VRO being made final
  • Fill in the “Consent” section on the back of the notice you received and return it to the court within 21 days.
  • You do not need to go to court if you agree to the restraining order.
The FVRO or VRO, as applicable, will be made final.
 
Before agreeing to the restraining order being made final you should check what you are not allowed to do. You may need to negotiate different terms.
 
2. Objecting to the FVRO/VRO being made final
 
  • Fill in the “Objection” section on the back of the notice and return it to the court within 21 days.
  • You will need to go to court if you object.
  • The first time you appear in court may be a “mention” date.
  • You do not need to take witnesses to a “mention” date.
  • At the “mention” the magistrate finds out if the matter is still going to a final order hearing. They also check how many witnesses you will have and decide how long the final order hearing should take.
  • There will be a final order hearing where the magistrate will listen to the reasons why the applicant wants the order and your reasons for objecting.
  • At the final order hearing both you and the applicant can present evidence and witnesses to support what you say.
  • If you are not sure, ring the court to find out whether you next court appearance is a mention date or a final order hearing.
  • If you have a good reason for not being able to attend court, contact the court as soon as possible.
3 Doing nothing
  • In this case a restraining order will be made final against you.
For information on what to do when an interim order becomes a final order because you did not object and you want to apply to set aside the decision see  After a restraining order is made.
 
What are my options if I have received a summons to a restraining order hearing?
 
A summons for an MRO/VRO/FVRO hearing means no order is in place and you have the chance to go to court and have your say about whether an order should be made.
 
If you have received a summons to a restraining order hearing your options include:
1. Agreeing that the restraining order be made
  • You do not need to go to court if you agree to the restraining order.
  • The applicant will tell the court why they want the order. The court will decide if an order is needed.
  • You can go to the mention hearing and consent to a final order being made. Consent does not mean you admit you did any of the things alleged.
2. Objecting to the restraining order being made
  • You will need to go to court if you object.
  • The first time you appear in court may be a “mention” date.
  • You do not need to take witnesses to a “mention” date.
  • At the “mention” the magistrate finds out if the matter is still going to a final order hearing. They also check how many witnesses you will have and decide how long the final order hearing should take.
  • There will be a final order hearing where the magistrate will listen to the reasons that the applicant wants the order and your reasons for objecting.
  • At the final order hearing both you and the applicant can present evidence and witnesses to support what you say.
  • If you are not sure, ring the court to find out whether your next court appearance is a mention date or a final order hearing.
If you have a good reason for not being able to attend court, contact the court as soon as possible.
 
For information on what to do when a final order is made because you did not go to the final order hearing and you want to apply to set aside the decision see After a restraining order is made.
 
3.  Doing nothing
In this case a final restraining order may be made final against you. The applicant will tell the court why they want the order. The court will decide if an order is needed.

Another way of responding to a restraining order application

Sometimes an applicant may accept an undertaking from you to settle a restraining order application. An undertaking is a promise to the court (either written or oral) that you agree to act in a certain manner or not do certain things. An undertaking replaces any restraining order that is in place. When the case comes to court you can offer an undertaking. The applicant does not have to accept an undertaking. It’s their choice. See Undertakings in restraining order proceedings.
 
The case can be settled by consent orders.
 
With family violence cases, at any stage in proceedings you can agree to be bound by the terms of a final order FVRO. The court may make a conduct agreement order on a “no–admissions” basis, that is, without you admitting that any family violence has occurred. If the order is breached it is a criminal offence.

Do I need to see a lawyer?

Although a restraining order is not a criminal charge it may affect you in the future.  You should get legal advice so that you understand:
  • The legal process and what it means to you. 
  • Legal costs you may have to pay.
  • How to represent yourself if you don’t have a lawyer.

What can I do if I am representing myself?

If possible get legal advice. If you do not have a lawyer see the Legal Aid WA information sheets that can help you prepare for and represent yourself at a final hearing. Click here to access these sheets.

Will I have to pay costs?

If the applicant at a final order hearing is represented by a lawyer and you are unsuccessful, the applicant’s lawyer can ask the court to award costs against you. If the costs order is made it means that you will have to pay the applicant’s legal costs.

When does a restraining order come into force?

A restraining order comes into force when it is served on (or given to) you or, if a later time is stated in the order, at that time.
 
It is taken as served if you are present in court when the order is made. Otherwise the police will serve it on you.

How long does a restraining order last?

A final FVRO or VRO against:
  • an adult stays in force for two years, or whatever period is stated in the order.
  • a child or young person under 18 years of age stays in force for no more than six months.
If you are in prison when a final FVRO is made the order stays in force for two years or the period stated in the order from when you are released from prison.
 
Police orders normally last for 72 hours or the time stated in the order.
 
A final MRO against:
  • an adult stays in force for one year, or whatever time is stated in the order.
  • a child or young person under 18 years of age stays in force for no more than six months.
 
The person protected can apply to extend the restraining order before the order ends.

Other ways an FVRO or VRO can be made against you

If a person pleads guilty to, or is found guilty of certain criminal offences against a family member in the Magistrates Court, such as common assault, the family member can tell the court they want to be protected by an FVRO. Unless there are exceptional circumstances a court is able to make an FVRO.
 
If a person is convicted of certain violent offences in a criminal court, that court can automatically make a lifelong FVRO or VRO against an adult or a child unless the victim does not want it.

Can I cancel or change a restraining order?

In limited circumstances you can apply to cancel or change a final or interim restraining order.
Get legal advice about this. See After a restraining order is made.
 

What is a breach of a restraining order?

A restraining order will stop you from doing certain things.
 
READ THE ORDER CAREFULLY.
If you do something that the restraining order says you can’t do you are “breaching” the order.
 
Some kinds of contact that would breach an order that you not communicate or try to communicate with the person bound are:
  • visits
  • phone calls
  • SMS or text messages
  • emails
  • letters
  • sending presents
  • sending messages, even through friends, family or your children.
No matter how angry or upset you are, your actions now are important.
 
You need to think carefully about what has happened, and what you want to happen in the future. 
 
There are a number of services available to help you. They can provide legal advice, information and support.
In some cases you may have a legal defence to a charge of breaching a restraining order. 
 
If the applicant makes contact with you, end the contact straight away (for example, put the telephone down, walk away, etc). If they persist in trying to make contact you may be able to have the order varied or cancelled.  Get legal advice.
 
If a protected person helps you breach a restraining order, the criminal court dealing with the breach has the power to cancel or vary the restraining order.

Is a restraining order a criminal charge?

No, a restraining order does not go on your criminal record. But, if you breach a restraining order you will be charged.
 
A conviction for breach of a restraining order will go on your criminal record.
 
Breaches of an FVRO or VRO or a police order can result in fines of up to $6,000 and/or imprisonment for up to two years.
Breaches of an MRO can result in a fine of up to $1,000.

Can I see my children if there is an FVRO in place?

An FVRO can include your children.
 
Read the restraining order carefully as the court may include conditions about what contact you can have with your children.
 
DO NOT CONTACT the person who got the restraining order to try and resolve this problem.
Remember, an FVRO cannot override a family court order. 
 
If there is a restraining order against you, it is important to understand what you are allowed to do legally otherwise you could breach the restraining order.
 
If you are worried about having contact with your children you need to:
  • See a lawyer. Contact Legal Aid WA’s Infoline on 1300 650 579 for information and referral.
  • Go to court at the next court date for the FVRO and say that you want to have contact with your children.
  • Get information about how you can get a family court order (if you don’t already have one) through the Family Court of Western Australia. (Contact Legal Aid WA’s Infoline on 1300 650 579 for information and referral or go to the Family Court of WA website.
 

What about my property?

The court can make an order that removes you from where you normally live even if you are the owner of that property. 
If this happens the court must make an order about how you can collect your personal property. Usually you will be allowed to go back to the property once, with the police - but check the terms of your restraining order carefully. If it is a condition of the order, you can ring 131 444 (Police Communication Centre). The police will try to contact the protected person and arrange a convenient time to them to collect their property in the presence of a police officer.
If the court has not made an order, you will need to get legal advice.
 
You will breach the restraining order if you go to where the applicant lives to collect your property without an order.
 
A restraining order is not a court order about who owns the property.  The family court makes orders about property settlement.
 
You may need to get legal advice from a family lawyer about how to get a family court order about property settlement.
 

Where can I get more information?

For legal advice
·      Aboriginal Legal Service on 1800 019 900.
·      Your local community legal centre. To find the one nearest to you phone (08) 9221 9322.
For information and/or support
·      Men’s Domestic Violence Helpline on (08) 9223 1199 or 1800 000 599.
·      Breathing Space (a residential service for men) on (08) 9439 5707. 
·      Legal Aid WA’s Infoline on 1300 650 579 can help with information and referrals. Information sheets on restraining orders are available from any office or the website.

 

Last reviewed: 29/06/2017

Last modified: 1/07/2017 9:38 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.