This post should be read together with our Blog Post “Restraining Orders in Western Australia” which provides a detailed description of the different types of restraining orders available in Western Australia and the possible grounds for seeking each restraining order.
If someone has sought a restraining order against you and is successful, the Court will issue an Interim Violence Restraining Order stopping you from being able to contact the person protected.
We note that if there is an interim order in place, it is a criminal offence to breach the Order.
When you are served with the notice you have two options:
You do nothing and risk having orders made final against you in your absence
You file an objection with the Court within 21 days of being served by police, which will lead to the matter proceeding to further hearings and potentially a trial.
Why Does Having a Lawyer Help Me?
Just because someone has been granted an interim violence restraining order (“VRO”) or the matter has been listed for a hearing, does not mean that you cannot contest the application or having your defence heard on a final basis.
If you have a friend or family member contact the person protected on your behalf, this is still a breach of the VRO. Lawyers, however, are exempt from this, and are able to liaise with the person protected to try and negotiate a different outcome that both parties consent to. In the event an agreement cannot be reached, it is beneficial to have a lawyer represent you in your trial as we are able to effectively present your position and argue your case with the backing of experience and knowledge surrounding the requisite legislation.
There are three main courses of action available when it comes to negotiating VROs, depending on the nature of the accusations and relationship. These options are:
Writing to the person protected and requesting they cancel their application on the grounds that the application is frivolous and vexatious.
Drafting and providing a Mutual Undertaking to the person protected to sign.
Drafting and providing a Conduct Agreement Order to the person protected to sign.
In some circumstances it may be appropriate to consider a consent order.
What is a Mutual Undertaking?
A mutual undertaking is an agreement between the parties to act in a certain way and avoid certain behaviors (for example not going near the other party). If the undertaking is mutual, it means that both parties are agreeing to abide by the agreement.
An undertaking is not a court order and is not enforceable by police. Breaching an undertaking will not result in criminal charges, however it will make it easier for the party not breaching the undertaking to seek another VRO in the future (if appropriate).
Undertakings can be agreed to at any time by the parties and are filed with the Court once the agreement has been signed with both parties so that it is aware of how the parties have resolved the matter and to assist in the event of further proceedings.
What is a Conduct Agreement Order?
Conduct Agreement Orders are only used in Family Violence Restraining Orders (FVROs) and essentially occur when the person bound consents to the Orders being made against them but on a without admission basis. This means you are agreeing to have an Order against you that is legally enforceable and has criminal consequences if breached, however, there is no finding by a Court that you have perpetrated family violence against the person protected.
The Conduct Agreement Order can replace the FVRO meaning you could attempt to negotiate more lenient terms, for example in the event there are children of the relationship and you are wanting to be able to communicate with your children.
At Carter Dickens Lawyers we have experience in assisting parties in obtaining and responding to VRO’s. We have fixed fee billing options available when it comes to responding to VRO matters, whether it be attempting to settle the matter out of court or representing you in a trial.
Please contact us on (08) 9408 5212 where we can arrange a meeting with one of our Lawyers to discuss your legal options with regard to a VRO you have had taken out against you.
Please note the above is general in nature and should not be relied upon as legal advice. All situations are different and legal advice must always be tailored to the specific facts of your Legal Matter.