RESTRAINING ORDERS FAMILY/DOMESTIC VIOLENCE THE LAW W HAT CAN THE POLICE DO? RESTRAINING ORDER TYPESWelcome to Dean R Love & Associates, Barristers & Solicitors 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. Contact Dean R Love & A restraining order is designed to prevent acts of physical Associates for a consultation: 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 1st Floor, 231 Adelaide Terrace worded to fit each particular circumstance. If a person PERTH WA 6000 disobeys the terms of a restraining order, they may be fined or imprisoned. Ph: (08) 9218 9993 Fx: (08) 9218 9557 The "applicant" is the person applying for a restraining E: firstname.lastname@example.org order. W: www.drllegal.com.au Apply For Legal Aid The "respondent" is the person against whom the order is made. An application for an order may be made by: Send Us A Query: A police officer on behalf of a person or a group of the If you would like to submit a query, please public, provide complete the form below: The person seeking the protection of the order, The parent or guardian of a child First Name: The guardian of a person. Last Name: Applications for either type of order can be made by attending Address the Magistrates Court of WA (or, where the respondent is a Street 1: juvenile, to the Childrens Court) during normal office hours, Address (9am to 4pm). Street 2: The police can apply on your behalf, and in cases where C ity: violence has occurred, they are encouraged to apply on your Post C ode: behalf. State: AC T What is a Restraining Order? Daytime Restraining orders are orders made under State or Territory Phone: laws that provide a quick and flexible method of obtaining Evening legal protection from many forms of violence or unacceptable Phone: behaviour, for example: Email: Enter comments here! Physical abuse, e.g. using physical force C omments: Sexual abuse, e.g. forced sexual activity Psychological abuse, e.g. humiliation, intimidation
Property damage. Submit ResetWhat laws apply?The Restraining Orders Act 1997 (WA) Dean R Loveallows for two types of restraining order: & Associates Barristers & Solicitors Misconduct Restraining Orders, which usually last for 12 months Violence Restraining Orders, which usually last for 24 months.Violence Restraining OrdersViolence restraining orders are the more serious of the ordersand are intended to restrain a person who: you believe is likelyto either commit a violent personal offence against you, or a Dean R. Love & Associates, Barristers &person for whom you have legal responsibility - such as a Solicitors, is a boutique legal practice that aimschild; or behave in a way to create a fear that such an offence to provide a high standard of legal service, at awill be committed. price affordable to ordinary people.If you have already been attacked or threatened with violence, For many people, the prospect of going to courta criminal offence may also have been committed. is a daunting one, and the thought of consulting a law yer about their legal rights is aYou should tell the police and ask for an offence reportnumber. confusing process. Often, people are uncertain about w hat to ask, and w ho to ask about aUnder special circumstances, a violence restraining order can particular problem. For this reason, w e w ill arrange an initial interview w ith you to discussbe sought by the police on your behalf by telephone, at anytime, any day. your matter and to decide how best to proceed.Your first action in an urgent situation should be to call the We aim to establish right from the outset w hatpolice. If considered appropriate, the police will then seek an your options are for legal action, w hat the likelyurgent telephone hearing with a Magistrate. costs w ill be and w hat the most efficient means of dispute resolution open to you are. We doThere is no fee payable when you apply for a violence not make promises that w e cannot keep andrestraining order. w e try to give realistic estimates of w hat your legal costs are likely to be, as w ell as yourWhen a violence restraining order is made, the court or prospects for success.magistrate will also make an order prohibiting the respondentfrom having a firearm licence or any guns. It is therefore For people in situations of hardship, w e w illessential that you inform the police or court if you are aware accept Legal Aid grants should you qualify, andthat the respondent has access to a gun. A firearms order are w illing to submit applications for samemay also be made at the hearing of a misconduct restraining should you request this.order. Additionally, we may in appropriateWho can apply? circumstances, be able to arrange litigation funding for you to ensure that financialYou can apply for a restraining order if you can show that one disadvantage does not prejudice your legalof the following types of violence has occurred and is likely to representation.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. DisclaimerHow to applyAn application can be made to the Magistrates Court of WA The information in this website includingby: the documents which can be downloaded from it is of a general nature only and You (if you are over 18 years) should not be relied on as legal advice. It By your parent or guardian (if you are under 18 years) does not take account of your particular A solicitor, friend, support worker who is authorised by circumstances, which are critical to you deciding the best course of action. Before A police officer. acting, you should consult an experienced lawyer.You can also apply by telephone. All reasonable effort has been made toService of Summonses and Orders provide accurate information but we doService involves bringing the content of an order or summons not warrant or represent its accuracy and
to the attention of the person to whom it refers. This is we reserve the right to make changes togenerally done by handing a copy to the person. This is the it at any time without notice.responsibility of the policeIn the case of telephone orders, the police will also arrange To the extent permitted by law, Dean R.service. This is generally done by the police station nearest to Love & Associates, Barristers & Solicitorswhere the respondent lives. It is important that you provide accepts no responsibility for any lossesto the police as much detail as you can to assist with the or damages of any kind arising out of theservice of the documents and tell them immediately of any use of any information contained on theinformation, such as change of address. web site.Regular contact should be maintained with the police stationnearest to the respondent to ensure service occurs. If by theweek before the hearing the summons has not been servedyou should ring the Police Information Line.It is important to remember that a matter listed before thecourt for hearing cannot proceed unless the personsummoned has been served and any order made by the courtdoes not come into effect until it has been served.Hearing ApplicationsWhen hearing an application, the court will requireevidence 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.It is important that you tell the police or the court if anyorders have been made between the parties in the FamilyCourt or any other court.Orders can be made to cover a wide range ofsituations and can include a direction that therespondent: Keep away from your home; Keep away from a school; Stop behaving in a certain way, or Stop interfering in the way you live.Where an application for a violence restraining order is madein person to a court, you can choose to have the initialhearing of the matter without the other person being present.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.
Alternatively, you may ask that your application proceed to ahearing in the presence of the other party. If in the hearingthe court is satisfied that reasonable grounds exist for themaking of the order, it will make a final order.Where a violence restraining order is sought by a police officeron your behalf whether or not by telephone, the magistratemay make similar orders to those made if the application wasmade in person.Telephone orders only remain in force for 3 months, or less ifspecified in the order.Applications for misconduct restraining orders can only bemade to a Court of Petty Sessions or Childrens Court (asapplicable). Hearings for these applications can only proceedafter 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 orderVarious orders can be made. For example, anorder 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.The order can be written to suit your situation.Breaching an orderThe order is a civil order but breach of an order may be acriminal offence. Contact the police if there is breach of thisorder. They can take action against a person who breaches arestraining order.Change or Cancellation of OrdersAny person who obtains an order, or the person againstwhom the order is made, may apply for a variation orcancellation of a final order. If the application is made by theperson against whom the order is made, the court must firsthold a hearing (in the absence of the person for whose benefitthe order was made) to consider whether sufficient groundsexist to permit the application to proceed.If the court grants approval to proceed, then both partieshave to attend the next hearing.