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Restraining Orders
If someone is violent to you, threatens you or your property, harasses or intimidates you and you are concerned that it will continue then you can apply to have a restraining order taken out against them. Although each order is individual, a restraining order can make it against the law for that person to come near you or your property. If they did, then they would be committing an offence.A restraining order is designed to prevent acts of physical violence or to stop threats in the future. It is an order of the court requiring a person to behave in certain ways and is worded to fit each particular circumstance. If a person disobeys the terms of a restraining order, they may be fined or imprisoned.
The "applicant" is the person applying for a restraining order.
The "respondent" is the person against whom the order is made.
An application for an order may be made by:
- A police officer on behalf of a person or a group of the public,
- The person seeking the protection of the order,
- The parent or guardian of a child
- The guardian of a person.
The police can apply on your behalf, and in cases where violence has occurred, they are encouraged to apply on your behalf.
What is a Restraining Order?
Restraining orders are orders made under State or Territory laws that provide a quick and flexible method of obtaining legal protection from many forms of violence or unacceptable behaviour, for example:- Physical abuse, e.g. using physical force
- Sexual abuse, e.g. forced sexual activity
- Psychological abuse, e.g. humiliation, intimidation
- Property damage.
What laws apply?
The Restraining Orders Act 1997 (WA) allows for two types of restraining order:- Misconduct Restraining Orders, which usually last for 12 months
- Violence Restraining Orders, which usually last for 24 months.
Violence Restraining Orders
Violence restraining orders are the more serious of the orders and are intended to restrain a person who: you believe is likely to either commit a violent personal offence against you, or a person for whom you have legal responsibility - such as a child; or behave in a way to create a fear that such an offence will be committed.If you have already been attacked or threatened with violence, a criminal offence may also have been committed.
You should tell the police and ask for an offence report number.
Under special circumstances, a violence restraining order can be sought by the police on your behalf by telephone, at any time, any day.
Your first action in an urgent situation should be to call the police. If considered appropriate, the police will then seek an urgent telephone hearing with a Magistrate.
There is no fee payable when you apply for a violence restraining order.
When a violence restraining order is made, the court or magistrate will also make an order prohibiting the respondent from having a firearm licence or any guns. It is therefore essential that you inform the police or court if you are aware that the respondent has access to a gun. A firearms order may also be made at the hearing of a misconduct restraining order.
Who can apply?
You can apply for a restraining order if you can show that one of the following types of violence has occurred and is likely to occur again:- Physically injury or threats to injure you.
- Damage or threats to damage your property.
- Offensive or provocative acts towards you.
- You have been intimidated or harassed.
How to apply
An application can be made to the Magistrates Court of WA by:- You (if you are over 18 years)
- By your parent or guardian (if you are under 18 years)
- A solicitor, friend, support worker who is authorised by you
- A police officer.
Service of Summonses and Orders
Service involves bringing the content of an order or summons to the attention of the person to whom it refers. This is generally done by handing a copy to the person. This is the responsibility of the policeIn the case of telephone orders, the police will also arrange service. This is generally done by the police station nearest to where the respondent lives. It is important that you provide to the police as much detail as you can to assist with the service of the documents and tell them immediately of any information, such as change of address.
Regular contact should be maintained with the police station nearest to the respondent to ensure service occurs. If by the week before the hearing the summons has not been served you should ring the Police Information Line.
It is important to remember that a matter listed before the court for hearing cannot proceed unless the person summoned has been served and any order made by the court does not come into effect until it has been served.
Hearing Applications
When hearing an application, the court will require evidence on such matters as
- the actions or conduct of the respondent who has caused the order to be sought,
- the circumstances of the parties,
- the welfare of children,
- the addresses of parties, (link to section on keeping address private)
- whether there is a history of actions or conduct of a similar nature and
- the effect of any orders made.
Orders can be made to cover a wide range of situations and can include a direction that the respondent:
- Keep away from your home;
- Keep away from a school;
- Stop behaving in a certain way, or
- Stop interfering in the way you live.
At this hearing the court may:
- Make an order of 72 hours duration or less, which must be served on the person against whom the order is made within 24 hours of the making of the order or it lapses;
- Make a temporary order of more than 72 hours duration. The person on whom the order is served has 21 days after service to lodge an objection to the order and, if an objection is received in this time, the matter will be listed for further hearing with both parties present. If no objection is received in the period. the order becomes final and remains in effect for the period specified in the order and if no period is specified, for a period of 2 years:
- Adjourn the matter to a hearing date: or
- Dismiss the application.
Where a violence restraining order is sought by a police officer on your behalf whether or not by telephone, the magistrate may make similar orders to those made if the application was made in person.
Telephone orders only remain in force for 3 months, or less if specified in the order.
Applications for misconduct restraining orders can only be made to a Court of Petty Sessions or Children's Court (as applicable). Hearings for these applications can only proceed after a summons has been served on the respondent.
Any order made only remains in force for a period of one year, or less if specified in the order.
Types of order
Various orders can be made. For example, an order can:
- Prohibit contact with you at home or work.
- Prohibit a person behaving in certain ways.
- Limit contact (for example, when the other person is drunk).
- Prohibit acting in an offensive manner.
- Prohibit damage to property.
- Prohibit a person being in possession of a firearm.
Breaching an order
The order is a civil order but breach of an order may be a criminal offence. Contact the police if there is breach of this order. They can take action against a person who breaches a restraining order.Change or Cancellation of Orders
Any person who obtains an order, or the person against whom the order is made, may apply for a variation or cancellation of a final order. If the application is made by the person against whom the order is made, the court must first hold a hearing (in the absence of the person for whose benefit the order was made) to consider whether sufficient grounds exist to permit the application to proceed.If the court grants approval to proceed, then both parties have to attend the next hearing.
Contact Dean R Love & Associates for a consultation:
1st Floor, 231 Adelaide Terrace
PERTH WA 6000
Ph: (08) 9218 9993
Fx: (08) 9218 9557
E: enquiries@drllegal.com.au
W: www.drllegal.com.au
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