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Monday, September 20, 2010
Applying For Violence Restraining Orders in Western Australia
Applying For Violence Restraining Orders in Western Australia
The law about restraining orders has changed (from 1 December 2004) to give greater protection to victims of Family and Domestic violence. If you are in a family or domestic relationship with the person you want the restraining order against this information is for you. Family or domestic relationship includes where the other person is your:
• spouse or ex spouse
• de facto or ex de facto
• girlfriend / boyfriend or ex girlfriend or boyfriend
• children and parents
• people you were or are related to.
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’.
Who can apply?
An application can be made by:
• anyone over the age of 18 or their guardian
• a child, if their parent or guardian or child welfare officer makes the application
• a police officer on behalf of any child or adult.
A restraining order cannot be taken out against a child under 10 years of age.
What you must prove
The court can make a Violence Restraining Order if it thinks that without it, the respondent is likely to:
AND the court thinks a restraining order should be made.
You only have to prove that an act of abuse is
In cases where a family and domestic relationship exists, an act of abuse has a special meaning and includes;
• any type of assault, injury or violent offence
• damaging property
• injuring or killing animals that are your property
• threats to do any of the above
• behaving in a way that is frightening, offensive or emotionally abusive
A child in a family and domestic relationship with the respondent can also apply a Violence Restraining Order on the grounds that they will be or are likely to be exposed to an act of family or domestic violence. Exposed means to see or hear injuries occurring from the family and domestic violence.
• act in a way that could make you fear that an act of abuse will be committed against you.
commit an act of abuse against you likely to be committed not that one has been committed.
What the court will take into account
Before making Violence Restraining Order (Domestic and Family Violence), the court has to think about a number of factors.
The three most important factors are;
• protecting you from the respondent’s violent behaviour
• stopping the respondent from acting in a way that could reasonably make you frightened for your safety
• the welfare of the children
Other factors the court will look at are:
• where you and respondent have to live
• how the respondent will suffer if the order is made
• any family orders
• any other court matter in which you or respondent are involved
• the criminal record (if any) of the respondent
• whether the respondent has ever acted in a similar way in the past to any person
• anything else the Court thinks is relevant.
How to apply
You can apply for a Violence Restraining Order (Domestic and Family Violence):
• in some cases during proceedings taking place in other courts, eg in the criminal courts.
• through a parent, guardian, police officer or DCD worker if you are under 18 years of age.
in person at the Magistrates Court or the Children’s Court if the respondent is a child
What is an Interim Hearing?
When you apply for a Violence Restraining Order (Domestic and Family Violence), the Court will usually hear the application as soon as possible at what is called an ‘interim’ hearing. You can give your evidence for the interim hearing in writing. This written evidence is called an "affidavit". The respondent is not at this interim hearing and the Court may grant you an interim (temporary) Violence Restraining Order. The restraining order is then served on the respondent. The respondent has 21 days to object to a Violence Restraining Order 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. If the respondent does object, then the matter goes to a final hearing where they get a chance to tell the court why the order should not be made.
If the court
does not grant an interim Violence Restraining Order they may issue a summons for the Respondent to come to the court for a hearing.
The court makes a date for both of you to attend a hearing.
In some courts the first hearing date is a ‘mention’ date (sometimes called a ‘callover’ date). You do not need to bring witnesses on the ‘mention’ date. On that day the Magistrate will want to:
The second court date is normally the defended hearing. On this date you bring any witnesses you have and come prepared to tell the court why you need a Violence Restraining Order (Domestic and Family Violence).
check if you still wish to go ahead with applying for the Violence Restraining Order (Domestic and Family Violence)
see how many witnesses you have
decide how long the defended hearing will take.
NB In some courts the first hearing date will be the defended hearing.
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 ‘defended hearing’.
What if you did not go to the hearing and the court made an order without you there?
If for some reason:
• you did not go to the hearing
• you did not know the hearing was on
you may be able to ask the court to hear the matter again and change the order. Get legal advice straight away.
If you want to change or cancel a restraining order
Get legal advice.
What can a Violence Restraining Order (Domestic and Family Violence) do?
A Violence Restraining Order (Domestic and Family Violence) can stop the respondent from doing whatever the court thinks is necessary. This may include stopping the respondent from:
• being at or near where you live or work
• being in or near a particular building or place
• coming within a certain distance of you
• contacting or trying to contact you in any way, including ringing, writing or text messaging you
• preventing you from using personal property you need even if the respondent is the owner of the property or has the right to have it
• getting anyone else to do any of the things listed above
Normally a Violence Restraining Order (Domestic and Family Violence) stops the respondent from having or getting a gun or a licence for a gun. A respondent must give up any existing gun and gun licence to the police.
If the court is not going to order that the respondent must give up their gun they should tell you.
Sometimes the respondent may have a lawyer. If the court decides at the final hearing not to give ou a restraining order the respondent's lawyer may ask the court to order that you pay legal costs. They would usually only do this if they thought you did not really believe you needed a restraining order
When does a Violence Restraining Order come into place?
A Violence Restraining Order comes into force as soon as it is served on the respondent. If it has not been served, the order is not in force and has no effect. If the respondent is in court when the order is made against them the order comes into force straight away, A final order stays in force for 2 years, or whatever time is state in the order. Telephone orders normally last for 72 hours or the time stated in the order.
If you are not sure how long the restraining order will be in force you should get legal advice
Breaching a Violence Restraining Order or Police Order
If the respondent does something that the Police Order or Violence Restraining Order (Domestic and Family Violence) says they can’t do they are ‘breaching’ the order. It is a criminal offence to breach a Police Order or Violence Restraining Order (Domestic and Family Violence). Breaches can result in fines of up to $6000 and/or imprisonment for up to 2 years. A breach will be considered more serious if a child who is in a family and domestic relationship with the parties is exposed to an act of abuse. If the respondent contacts you through a lawyer, the Aboriginal Legal Service or someone like Relationships Australia or Centrecare they are not breaching the order.
Police may make an on the spot Violence Restraining Order called a ‘Police Order’ in situations of family and domestic violence. The police order may be made for 24 or 72 hours. If you want an ongoing Violence Restraining Order you will have to apply to the court yourself or ask the Police whether they can apply on your behalf.