If you have received an interim (temporary) restraining order or a summons to go to court for a restraining order hearing, the following information is a good starting point to understand your situation and defend yourself.

If you have received a final restraining order or you have been charged with breaching a restraining order, you should seek legal advice from a family lawyer.

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

 

Types of restraining orders

Restraining orders aim to stop violent, abusive, intimidating and antisocial behaviours. There are three types:

• Violence restraining orders (VRO) 

• Misconduct restraining orders (MRO)

• Family Violence Restraining Order (FVRO)

• Police orders.

If parties are in a family relationship, then a Violence Restraining Order (“VRO”) is not available to them in Western Australia, as it was prior to 1 July 2017. With the change now in place, a person who seeks protection by way of an order to restrain another person with whom they have a family relationship, needs to apply for an FVRO.

 

When does the order come into effect?

A restraining order comes into force when it is served on you, (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.

Where there has been family and domestic violence, the police can immediately issue a police order for up to 72 hours, which prevents the offender from going near the applicant or the places they live and work for that period of time.

 

How long does the order stay in place?

A final violence restraining order against an adult stays in force for two years, or whatever period is stated in the order. For a child or young person under 18, it stays in force for no more than six months.

If a person is convicted of certain violent offences in a criminal court, that court can automatically make a lifelong restraining order against an adult or a child unless the victim does not want it.

Police orders normally last for 72 hours or the time stated in the order.

A final misconduct restraining order against an adult stays in force for one year, or whatever time is stated in the order. For a child or young person under 18, it stays in force for no more than six months.

The person protected can apply to extend the restraining order before the order ends.

 

What should I do when I am served?

A restraining order will stop you from doing certain things in terms of your actions towards, or communications with the Applicant.  No matter how angry or upset you are, your actions now are important.

Being served with a restraining order, particularly one that is undeserved, is no doubt frustrating but it’s important to remain calm. Reacting aggressively or abusively towards the person who serves you with the order may be detrimental to your case.

A restraining order or police order isn’t a criminal charge and does not go on your criminal record but if you breach an order you will be charged. It’s important to read the conditions of the order very carefully.

Seek immediate clarification from the police or the court if there are any conditions in the order which you do not understand.

 

Breaching an order

If you do something that the restraining order says you can’t do you are “breaching” the order. A conviction for breach of a restraining order will go on your criminal record.

Breaches of a Restraining Order or Police Order can result in fines of up to $6,000 and/or imprisonment for up to two years.

Breaches of a MRO can result in a fine of up to $1,000.

If you want to mount a legal defence to a charge of breaching a restraining order you should only arrange mediation or contact the applicant through:

• a lawyer

• an Aboriginal Legal Service Court Officer, or

• someone from an organisation such as Relationships Australia or Centrecare.

 

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.  Seek legal advice about this.

If a protected person helps you to breach a restraining order, the criminal court dealing with the breach has the power to cancel or vary the restraining order.

 

What about my children?

A restraining order 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.

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 restraining order 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 Australia or the Family Court of Western Australia. 

 

http://www.familycourt.gov.au
http://www.familycourt.wa.gov.au

 

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 Assistance Centre). The police will try to contact the protected person and arrange a time that is convenient to them and then accompany you to collect your property in the presence of a police officer.

Property that may be recovered includes any, or all, of the following:

• property that is used by you to earn income

• personal property of your child

• property that is wholly, or partly, your property and that is used for, or by, your child 

• property that the other party to the restraining order has agreed that you may recover.

 

You will breach the restraining order if you go to where the applicant lives to collect your property without an order. If the court has not made an order, you will need to get legal advice.

A restraining order is not a court order about who owns the property. You may need to get advice from a family lawyer about how to get a family court order about property settlement.

If the applicant or person protected has moved out of the place where they normally live, and a restraining order is now in place, they are not allowed to visit you.

If the applicant still has personal property in the family house, they may ask the court to include a condition on the VRO saying they can go back to that house to get their personal property in the presence of a police officer.

If an interim restraining order has already been made and the court has not made an order allowing the person protected to collect their property, the person protected can apply to the court for a variation of the restraining order to include such an order.

You should not initiate contact to arrange getting their property back to them if it is prohibited under the restraining order. Instead, contact the police and arrange for the goods to be given back to the person.

If you were in a relationship don't throw away the property as it may form part of your property settlement. If this applies to you get legal advice.

 

The legal process

There are a number of services available to help you to defend yourself against a restraining order. They can provide legal advice, information and support.
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 restraining order (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.

 

If you have received an interim violence restraining order your options include:

1. Agree to the restraining order 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 restraining order 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. Object to the restraining order 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. Do nothing

If you do nothing, a restraining order will be made final against you.
For information about what you should do if you want to apply to have a final order set aside when the interim order becomes a final order because you did not object, contact Legal Aid for advice.

 

Have you received a summons for a restraining order hearing?

A summons for a restraining order hearing means no order is in place yet 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 are the same as those outlined above.

 

Settling the matter with an undertaking

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.

 

Should I get legal advice?

Although a restraining order is not a criminal charge it may affect you in the future significantly. For example, some job applications would be affected. You should get legal advice so that you understand the legal process and what it means to you.

You need to understand how to represent yourself, if you don’t have a lawyer to represent you. Legal Aid or your local community legal centre may be able to assist you with legal advice.

As unfair as the restraining order may be, you must abide by it while you are awaiting your hearing.

For information on how to prepare and represent yourself at a restraining order final hearing contact Legal Aid for their helpful information sheets of preparing for court and representing yourself.

 

Court Costs

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

 

Cancelling or varying an order

In limited circumstances you can apply to cancel or change a final or interim restraining order. If you wish to do this, you should get legal advice. There are a number of services that can assist you. Most are free and all are confidential.

 

For legal advice contact:

Aboriginal and Torres Strait Legal Service on 1800 019 900
Legal Aid - www.nationallegalaid.org
National Association of Community Legal Centres (NACLC) - www.naclc.org.au

For information and/or support service details contact:
Men’s Domestic Violence Helpline - 1800 000 599
Women’s Information and Referral Exchange (WIRE) - 1300 134 130

 

By Christine Weston,
www.DivorceResource.com.au
References: Family Court of WA, Legal Aid, Family Court or Australia.