Family Violence Restraining Orders (WA)
A Restraining Order is an order of the court restraining a person from committing family violence or personal violence against another person or persons by imposing restraints on their behaviour and activities. In Western Australia, there are three types of restraining orders that can be made by the court. These are Family Violence Restraining Orders, Violence Restraining Orders and Misconduct Restraining Orders. There are also temporary restraining orders that can be made by the police under certain circumstances. This article discusses Family Violence Restraining Orders. A Family Violence Restraining Order (FVRO) restrains a person from committing family violence against a person with whom they are in a family relationship.
What if I have been served with FVRO paperwork?
If you have been served with an application for an FVRO, it means that someone who you are in a family relationship with has commenced an application for a FVRO against you.
If you have been served with an FVRO, this means the court has already made the order and you may be charged with a criminal offence if you breach it.
What is a family relationship?
The term ‘family relationship’ is defined in section 4 of the Restraining Orders Act 1997.
It means a relationship between two persons:
- Who are, or were, married; or
- Who are, or were, in a de facto relationship; or
- Who are, or were, related to each other; or
- One of whom is a child who ordinarily resides with, or resided with the other person or regularly stays,or stayed with the other person; or
- One of whom is, or was, a child for whom the other is a guardian; or
- Who have, or had, a personal relationship, with each other; or
- One of whom is the former spouse or partner of the other’s current spouse or partner.
When can a court make an FVRO?
A court has the power to make an FVRO, if it is satisfied that:
- The respondent has committed family violence against a person seeking protection and is likely again to do so again in the future;
- A person seeking to be protected, or a person who has applied for the order on their behalf, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking protection.
What is family violence?
The term ‘family violence’ is defined in section 5A of the Act. It includes violence, or a threat of violence, by a person towards a family member or any other behaviour by the person that coerces or controls the family member or causes them to be fearful.
Several examples are provided for under the Act, and include behaviour such as:
- An assault;
- A sexual assault or other sexually abusive behaviour;
- Stalking or cyber-stalking;
- Repeated derogatory remarks;
- Damaging or destroying property;
- Causing death or injury to an animal that is the property of the family member;
- Unreasonably denying financial autonomy;
- Unreasonably withholding financial support;
- Preventing the family member from making connections;
- Kidnapping or depriving the family members liberty;
- Distributing an intimate image; or
- Causing any family member who is a child to be exposed to any of the above mentioned behaviour.
What to do if you have been served with an FVRO or application
If you disagree with an application for an FVRO against you, you must lodge an objection to the application within 21 days. If an objection is not lodged, the interim order will be made final for a period of two years.
If you disagree with an application for an FRVO against you, contact the court registry to obtain a copy of the application that is being made and affidavit. If an FVRO has already been made in your absence and you disagree with it, seek legal advice and in the meantime, do not breach the order.
Breaching an FVRO
Under section 61(1) of the Act, a person who is bound by an FVRO and breaches that order commits an offence. The maximum penalty for this offence is a fine of $10,000, imprisonment for two years or both.
It is not a defence, nor a mitigating factor, if the protected person has procured the respondent to breach the order. However, if the court is satisfied that the protected person aided the breach, the court is empowered to cancel or vary the FVRO.
Third Strike Rule
Should the respondent to an FVRO have committed, and been convicted of, at least two previous breaches of the FVRO, the penalty imposed by the court must include a term of imprisonment.
Mutual Undertakings & Conduct Agreement Orders
An FVRO can be resolved without the matter proceeding to a final order hearing by the parties agreeing to either:
- A Conduct Agreement Order; or
- An undertaking.
Restraining Orders during Criminal Proceedings
Pursuant to section 63(1) of the Restraining Orders Act 1997, the court has the power to make a restraining order against a person appearing before the court in relation to a criminal charge, including when considering a bail application or imposing a sentence.
Unless exceptional circumstances exist, where a person pleads guilty or is found guilty of certain offences under the Criminal Code, an FVRO made be made against that person.
This includes offences such as:
- Suffocation & strangulation;
- Wounding and similar acts;
- Common assault;
- Assault occasioning bodily harm;
- Indecent assault; and
These offences are known as ‘violent personal offences’ and empower the court to make an FVRO for the period of the life of the person who committed the offence.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.