Police Restraining Orders (WA)
In Western Australia, a restraining order can be made by a court on the application of the police or on the application of a private individual. A restraining order can also be made by the police under certain circumstances. These are known as “police orders”. This article outlines how and when police orders are made.
What is a police order?
A police order is the name given to a temporary restraining order made by a police officer under section 30A of the Restraining Orders Act 1997.
When can a police order be made?
A police order may be made by a police officer if the officer reasonably believes that:
- a person has committed family violence and is likely to commit family violence again; or
- a child has been exposed to family violence committed by or against a person with whom the child is in a family relationship and the child is likely to be exposed to violence again;
or if the officer has reasonable grounds to apprehend, or reasonably believes that another person has reasonable grounds to apprehend that:
- a person will commit family violence against a person; or
- a child will be exposed to family violence committed by or against a person with whom the child is in a family relationship.
The police officer must believe that the making of the order is necessary to ensure the safety of a person.
What matters must be considered?
Before making a police order, the officer must have regard to the following factors:
- the need to ensure that the person 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;
- the need to ensure the wellbeing of children;
- the accommodation needs of the person involved;
- hardship that may be caused;
- any similar behaviour involving the person; and
- any other relevant matter.
What restraints can be imposed under police orders?
An officer is empowered to impose restraints on the lawful activities and behaviour of a person to prevent them from committing family violence.
This may include restraints on:
- being or near premises where another person lives or works;
- approaching within a specified distance of another person;
- causing or allowing another person to engage in any conduct referred to in subsection 1 and 2; and
- from entering or remaining in a place, or restrict a person’s access to a place, even if they have a legal or equitable right to do so.
Whilst the order must ensure that the person who is in danger is protected, the officer must also ensure that it is no more restrictive of the respondent’s personal rights and liberties than necessary.
Who can a police order be made against?
A police order can be made against an adult or a child. However, it cannot impose restraints on a child unless the child is in a family relationship with the person for whose benefit the order is made.
An officer must not make an order against a child that might affect the care and wellbeing of the child unless appropriate arrangements have been made.
A police order must be effectively served on the respondent.
The order must specify the name of the person for whose benefit the order is made and the name of the person who is restrained by the order.
At the time of service, the officer must explain the following to the person restrained by the order:
- the order’s purpose, duration, terms and effects;
- the consequences that may follow if the person breaches the order; and
- that counselling and support services may be of assistance and refer the person to those specific services.
A police order remains in force for 72 hours or any shorter period specified in the order.
If the police order is not served within 24 hours, the order lapses.
An order cannot be extended or renewed. Nor can another police order be made in respect of the same facts.
Penalty for breaching a police order
A person who is bound by a police order and breaches that order is liable to a fine of $10,000 or imprisonment for two years, or both.
Example of a breach
The police are called to attend a residential address where it is alleged that a husband and wife are having a verbal altercation.
Upon arrival, the officer is concerned that should the wife not leave the property, the argument may become physical. After talking with the wife, the officer is advised that she can stay with her parents at their house.
The officer issues the wife with a police order restraining her from attending the matrimonial home for a period of 72 hours.
The following day the wife returns to the matrimonial home and the husband calls the police. As the wife is restrained from returning to the matrimonial home for a period of 72 hours, she is in breach of the order.
The wife is charged by the police for breaching the order and faces criminal penalties.
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