Restraining Orders
Violence & Misconduct Restraining Orders
In Western Australia, a Restraining Order is a set of injunctions made under the power of the Restraining Orders Act 1997, which injuncts (legally forbids) a person from doing certain acts and from going to certain places. If the bound person breaches the terms of the restraining order, then they can be charged with the offense of being in breach of a restraining order.
Restraining Orders are designed to create physical and psychological distance between people by preventing the bound person from approaching, or communicating with, the protected person. If you are reading this because you believe that someone in your life is acting inappropriately and you need this form of protection, please obtain independent legal advice from a lawyer.
There are three types of Restraining Orders. Each restraining order type applies to a specific legal need which depends on the type of relationship between the parties, and what incidents have happened.
Family Violence Restraining Order (FVRO)
Violence Restraining Order (VRO)
Misconduct Restraining (MRO)
People come to the conclusion that they need a restraining order from events that arise during their lives. Usually, these events are stressful and intolerable. This can include suffering various forms of abuse, threats, violence or stalking behaviors. Restraining Orders are designed to stop certain things from happening to the victim and should be considered carefully.
Before you do anything, you should spend some time writing down everything that has happened to you that has led to you believing that you may need a restraining order. This is very important as it will become the basis of your evidence. It will allow a lawyer to advise you on what type of restraining order you may need, or indeed if a restraining order is the best option. This information will be needed when you speak to the Magistrate when you apply for a Restraining Order.
The information that you compile in support of your restraining order should include the time/date and a description of events of the following:
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Examples of physical violence
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Examples of verbal abuse, put downs, derogatory or offensive language
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Screenshots of abusive, intimidating or derogatory SMS messages, social media posts, or other transmitted or published content
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Anything else that you think may be relevant to obtaining a restraining order.
Family Violence Restraining Order
Family Violence Restraining Orders (FVRO) differ from Violence Restraining Orders in terms of the types of relationships to which they apply. An FVRO may only be sought if the Applicant and Respondent are family members. This includes those who were formerly married or in a de facto relationship, those who shared an intimate personal relationship and other familial relationships such as parent/child. See 4(1) of the RO Act.
In determining whether an FVRO will be granted, the Court is required to have regard to a number of factors, which are set out at section 10F of the RO Act. This includes, but is not limited to, the need to ensure that the person seeking to be protected is protected from family violence; the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have family violence committed against them; and, the need to ensure the wellbeing of children by protecting them from family violence.
A Court may make an FVRO if it is satisfied that the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected. See Section 10D of the RO Act.
Family Violence covers a broad range of behaviors including violence, or a threat of violence, by a person towards a family member of the person; or any other behaviour by the person that coerces or controls the family member or causes the member to be fearful. Some examples include, an assault against the family member; a sexual assault or other sexually abusive behaviour against the family member; stalking or cyber‑stalking the family member; repeated derogatory remarks against the family member; and damaging or destroying property of the family member; See section 5A of the RO Act for more examples of Family Violence.
Violence Restraining Order
A Violence Restraining Order may be obtained for protection from any person who is not a family member as defined in section 4(1) of the RO Act.
A Court may make a VRO if it is satisfied that the respondent has committed personal violence against a person seeking to be protected and the respondent is likely again to commit personal violence against that person; or a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit personal violence against the person seeking to be protected, and that making a VRO is appropriate in the circumstances.
When considering whether to make a VRO and the terms of the order a court is to a number of factors including: the need to ensure that the person seeking to be protected is protected from personal violence; the need to prevent behaviour that could reasonably be expected to cause the person seeking to be protected to apprehend that they will have personal violence committed against them; the need to ensure the wellbeing of children by protecting them from personal violence; the accommodation needs of the respondent and the person seeking to be protected; the past history of the respondent and the person seeking to be protected with respect to applications under this Act, whether in relation to the same act or persons as are before the court or not; hardship that may be caused to the respondent if the order is made; other current legal proceedings involving the respondent or the person seeking to be protected; any criminal convictions of the respondent; any previous similar behaviour of the respondent whether in relation to the person seeking to be protected or otherwise; other matters the court considers relevant. See Section 12 of the RO Act.
Misconduct Restraining Order
When considering obtaining a Misconduct Restraining Order, the applicant needs to be aware that you cannot obtain an MRO against a family member. Specifically, Order 35A of the RO states: A court is not to make an MRO unless it is satisfied that the person seeking to be protected by the order and the person bound by the order are not in a family relationship with each other. For the definition of Family Relationship see 4(1) of the RO Act.
MRO’s are often required where people who do not have familial relationships need to create some distance due to offensive or intimidating behaviour. For example, it is usually an MRO that is applied for when the relationship between neighbors turns sour.
A court may make an MRO if it is satisfied that unless restrained, the respondent is likely to behave in a manner that could reasonably be expected to be intimidating or offensive to the person seeking to be protected and that would, in fact, intimidate or offend the person seeking to be protected; or cause damage to property owned by, or in the possession of, the person seeking to be protected; or behave in a manner that is, or is likely to lead to, a breach of the peace. See Section 34 of the RO Act