Varying, cancelling, extending or appealing orders
In some circumstances, restraining orders can be changed, cancelled or extended. Common reasons someone might ask the court to change the conditions of a restraining order include:
- to allow the respondent to live with, spend time with, or communicate with children under parenting orders from the Family Court
- to communicate with the protected person by email, text message or SMS in order to make arrangements about spending time or communicating with their children, or
- to go with a police officer to collect items from the protected person's address.
If you missed a court hearing and a decision was made without you being there, you might be able to have that decision set aside and the application re-heard. If you are unhappy with a decision about making a restraining order, you might be able to appeal against that decision.
- how you can apply to vary, extend or cancel a restraining order
- when you can ask the court to set aside a decision made in your absence, and
- what decisions you can appeal against.
Can I ask the court to vary, extend or cancel a restraining order?
I am a person protected by the order
The person protected by a final restraining order can ask the court to:
- change any of the conditions of the order,
- extend the duration of a final order, or
- cancel the restraining order.
They can also ask to change the conditions of an interim FVRO or VRO.
When the court receives your application, it will set a hearing date and summons the person bound by the order to come to court, so they can have a say about your application if they want. If you only want to have the order cancelled, you can ask the court for a hearing without the other person.
Anyone who could have applied for the original order can also make an application to vary, extend or cancel the order. In an application in a criminal court, the prosecutor can make the application for you.
I am the person bound by the order
The person bound by a restraining order can ask the court to:
- change any of the conditions of an interim or final order, or
- cancel a final restraining order.
When the court receives your application, it will set a hearing date to decide if you will get permission (also called 'leave') to continue with your application. The person protected by the order does not come to this hearing. The court will only give permission to change or cancel a restraining order in limited circumstances.
If you want to change or cancel an interim Family Violence Restraining Order (FVRO) or Violence Restraining Order (VRO), you must be able to show:
- the conditions of the order are causing you serious and unnecessary hardship, and
it is appropriate your application is heard as a matter of urgency.
- If you want to change or cancel a final order, you must be able to show:
- the protected person has repeatedly invited, encouraged or somehow tried to get you to breach the order, or
- there has been a substantial change in circumstances since the final order was made.
If the court gives you permission to continue your application, you and the protected person will come to another hearing where the court will decide if it should change or cancel the order.
The court can also vary or cancel a restraining order when sentencing you for breaching a restraining order if it is satisfied that the person protected by the order has repeatedly invited, encouraged or somehow tried to get you to breach the order. The court cannot do this without letting the person protected have their say about the change or cancellation.
What if I missed a final hearing and the court made a decision without me?
If you have a good reason for why you were not able to come to court, you can ask the court to set aside the decision and re-hear the matter.
This might be where you are:
- the applicant and the court dismissed your application for a restraining order because you didn't come to the final order hearing, or
- the respondent and the court made a restraining order in your absence at a final order hearing.
The application to set aside a decision has to be made within 21 days of when you were told the court made the decision in your absence, unless you have a good excuse for why you couldn't apply in time. The other party will have the opportunity to say something about your request have the decision set aside.
If the court sets aside the decision, any interim restraining orders are put back in place and the case will be re-listed for another final order hearing.
To make this application, you can ask for a copy of Form 18 from the Magistrates Court registry.
What if I wanted to object to an interim restraining order, but didn't lodge the form in time?
If the court does not receive your objection to an interim FVRO or VRO within 21 days of when you were served, it automatically becomes a final order. If you have a good reason for why you were not able to send your objection to the court in time, you can ask the court to set aside the final order.
The application to set aside the final order has to be made within 21 days of when you were told the court had made the final order, unless you have a good excuse for why you couldn't apply in time. The other party will have the opportunity to say something about your request have the final order set aside.
If the final order is set aside, the original interim order will be put back in place and the case will progress towards a final order hearing.
To make this application, you can ask for a copy of Form 17 from the Magistrates Court registry.
Can I appeal against a decision about restraining order?
It is possible to appeal against a decision to:
- dismiss an application for an interim restraining order that was initially heard by telephone or in the absence of the respondent
- make, vary or cancel a final order, including decisions to not do those things, and
- 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
- what time limits apply to starting an appeal
- which court you need to appeal to (it all depends on who made the original decision), and
- what fees and costs could be involved, including possible orders to pay legal costs if you are unsuccessful.
It can be very difficult to get an extension of time to start an appeal. You should try to get legal advice as soon as possible.
Magistrates Court of Western Australia
Application forms to change or cancel a restraining order, including nationally recognised orders. The forms to set aside decisions are available in person from the court registry.
District Court of WA
For information on appealling against a Magistrates Court decision about a restraining order.
Last reviewed: 1 May 2020