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Restraining orders - court process

Restraining orders - court process

 
 
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 still applies. If you apply for a restraining order from 1 July 2017 the new law applies.

Who is the applicant and who is the respondent?

If you are applying for a restraining order you are called the applicant or the person seeking to be protected. The person you want the order against is called the respondent or, if the order is made, the person bound by the order.

How should I behave in court?

  • Be on time.
  • Dress neatly.
  • Do not have your mobile phone, or other electronic device or sunglasses on in court.
  • Bow to the magistrate when you enter the courtroom.
  • Call the magistrate “Your Honour”. Stand when you speak to the magistrate or when you are being spoken to by the magistrate.
  • Make childcare and school pick up arrangements before going to court. Contact the court well before the final hearing to see if you can get help with childcare.
  • If you need an interpreter contact the court as possible before your court date to ask them to arrange an interpreter.

What happens when I apply for a restraining order?

Family violence restraining orders (FVRO) and violence restraining orders (VRO)
Magistrates do things differently. For FVROs, talk to your local family violence service, or get legal advice if you can before you go to court, to find how your local court deals with these applications. The court can also let you know how interim VRO applications are dealt with.
 
When you apply for an FVRO or VRO the court will usually hear the application as soon as possible at what is called an "interim" hearing.
 
You, as the applicant, give evidence at the interim hearing in writing or orally. Evidence in writing is called an "affidavit". The affidavit is your story of what happened and why you want the order.  It is separate to what you put in your application form.
 
You are swearing on oath or making an affirmation to tell the truth in the affidavit. It is a criminal offence to knowingly give false evidence. 
 
Alternatively you can tell your story (or “give evidence”) orally in court. You will be asked to swear an oath or make an affirmation to tell the truth before you tell your story in court.
 
A magistrate or justices of the peace will listen to or read your evidence. They may ask you questions. The respondent is not at this interim hearing and is not told when it is happening. Later they can ask for a transcript or written record of what was said.
 
After hearing your evidence, the magistrate/justices of the peace may do one of the following:
  • Grant an interim FVRO or interim VRO.
  • Make no decision, and summons the respondent to appear and give some evidence before they make a decision.
  • Dismiss the application and not grant an interim FVRO or interim VRO.
Misconduct restraining orders
Unlike in some FVRO or VRO applications, you cannot get an MRO straight away.
 
When you make your application at the court the registrar will set a court date.
 
The first court date is usually a “mention” date (sometimes called a “callover” date but sometimes it is a hearing). You do not need to bring witnesses on the “mention” date. On that day the magistrate will want to:
  • check if you still wish to go ahead with applying for the MRO
  • see how many witnesses you have, and
  • decide how long the final order hearing will take.
The second court date is normally the final order hearing. On this date you bring any witnesses and come prepared to tell the court why you need an MRO.

Warning!

Different courts may have different systems. Always ring the court before a court date to check if the first date is a “mention” date or the final order hearing. 
 

What happens after an interim FVRO or VRO is granted?

If an interim FVRO or interim VRO is granted, the order is faxed to the police station nearest to the respondent's home, and the police will serve the order on the respondent. The interim FVRO or VRO comes into effect at the time it is served on the respondent.
 
The respondent has 21 days to object to an FVRO or VRO being made by sending a notice to the court.
 
If the respondent does not object within 21 days, then a final order will be made. This will usually last for two years.
 
When an interim order becomes a final order because the respondent did not object by sending the notice to the court within 21 days, the respondent can apply to have the final order set aside. Time limits apply for this application but an extension is possible if the court thinks there is a reasonable excuse for being late.
 

If an interim order is not made

If an interim order is not made (and the application is not dismissed) you can choose to whether you want go on with your application or not.

Do I need to see a lawyer?

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.
Legal Aid WA or your local community legal centre may be able to assist you with legal advice.
 
If you have a final order hearing date coming up and there is an interim FVRO or interim VRO in place, you should:
  • Contact Legal Aid WA as soon as possible to see if you are eligible for legal representation at your final order hearing.
  • If you are not eligible for legal aid, get legal advice as soon as possible so you can be prepared for the hearing.

Going to court for a final hearing

Legal Aid WA has information sheets to help you  prepare for and represent yourself at a final order hearing. They should be used with legal advice. 
 
Before the hearing
 
Before the final hearing date:
  • contact the court to see what time you need to be there. It's best to get there about half an hour before the court hearing.
  • 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 or would be distressed or intimidated in open court. You must apply by lodging a Form 23 and an affidavit in support at least 14 days before the hearing.
At court
Your case may not be heard straight away. Plan to be there for the whole day.
 
When you get to the court check the lists on the walls or ask a receptionist to tell you which courtroom you are in.
 

What happens if I didn't go to a court hearing and the court made a decision without me being there?

If for some reason you did not go to the hearing you may be able to ask the court to hear the matter again and change the decision to grant or not to grant an order. You must be able to show you had good reason for not being at court.
 
If you are not sure how to do this, get legal advice immediately.
 
For information on how to change or cancel an FVRO or VRO that has already been made final, go to Restraining orders - varying, cancelling, extending or appealing orders.

Other options to resolve a restraining order matters

Sometimes it is possible to resolve a restraining order matter by consent orders or the respondent agreeing to an undertaking. For information on undertakings see the Legal Aid WA information sheet:Undertakings in restraining order proceedings or click here

Will I have to pay costs for going to court?

If the final restraining order is granted, your lawyer may ask for the court to order that the respondent pay for your legal costs.
 
If the restraining order is not granted, the respondent's lawyer may ask for the court to order that you pay for the legal costs. In this case, you will only have to pay the respondent's legal costs if the court decides that your application was "frivolous or vexatious". An example of where costs might be ordered is if your case was so weak it was never going to succeed.

Where can I get more information?

  • 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.
  • Go to the Magistrates Court of WA website or a registry for fact sheets and application forms.
  • Contact Legal Aid WA’s Infoline on 1300 650 579 for information and referral and to get copies of information sheets that may help you.
  • Contact your local community legal centre.
  • On responding to a restraining order application visit the webpage Responding to a restraining order application.
  • Click here to view and download Legal Aid WA information sheets that may help you prepare for and represent yourself at a restraining order final hearing. They should be used with legal advice. You can also get a copy at any Legal Aid WA office.  

 

Last reviewed: 29/06/2017

Last modified: 26/07/2017 1:51 PM

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.