Psychologists regularly remind us of the importance of setting boundaries. Sometimes when people cannot between them set the boundaries, or one of them won’t respect boundaries, all that is left is for the Courts to set legal boundaries. In Western Australia, the Magistrates Court does this by imposing restraining orders in a process which is relatively fast and often very effective. This is a key part of the family law system within Western Australia.
Restraining orders are used to protect someone from the actions of another person. The order will clearly set out what the person bound by an order cannot do. Restraining orders typically restrain a person from being on or near specified premises (such as the protected person’s residence or workplace). Other restraints may include being disallowed from contacting the protected person by any means or even saying or publishing derogatory things about a person.
MROs and VROs – Differences
There are two main types of restraining order – a Misconduct Restraining Order (MRO) and a Violence Restraining Order (VRO). A VRO requires a higher threshold of actual or feared harm to be proved by the person seeking to be protected than an MRO. A VRO is an order made by a Court or a police officer in order to protect a person from acts by another that are violent or reasonably create fear of violence or abuse.
A MRO is an order made by a Court to protect a person from acts that are intimidating or offensive or could result in a breach of the peace or damage to property. People who were or are involved in a relationship cannot take out an MRO against one another – they must apply for a VRO. Unless the Court specifies otherwise, VROs last for 2 years and MROs last for 1 year.
Emergency Restraining Orders
In emergency situations where police have been called to attend at a place where a person feels imminently threatened by another person’s actions or has been exposed to domestic violence the police can issue a restraining order on the spot. Police orders can only be made in relation to persons who were or are involved in a relationship (or imagined relationship in the case of a stranger who is stalking another person). Police orders can last no longer than 72 hours and are designed to provide immediate protection for a person who feels threatened while that person makes an application to a Court for a VRO that has a longer life.
Breach of Restraining Order
A breach of a VRO is considered more serious than a breach of an MRO and can result in imprisonment. A breach of an MRO will result in a fine. If an action that breaches a restraining order is also a criminal offence (such as assault or stalking) then charges for that offence can be brought in addition to a charge of breaching the restraining order. Committing an offence which also breaches a restraining order aggravates the offence and will result in a harsher penalty than if a restraining order was not in place.
Criminal Record and Restraining Orders
Restraining orders are not criminal charges but a civil action brought by a private citizen against another citizen. If you are or have ever been restrained by a VRO or MRO it does not appear on your criminal record. If you are found guilty of breaching a restraining order, that offence will appear on your criminal record.
Restraining Order Applications
An initial application for a restraining order can be made to a Court without the Defendant being present. The applicant decides whether s/he is happy for the initial hearing to be conducted without the respondent present. If the respondent has not been notified of a hearing only an interim restraining order can be issued.
It is often preferable for applicants to have the first hearing without the respondent present because they are fearful of that person. The usual rules of evidence do not apply at hearings where the respondent is not present in order to allow applicants to present their case simply.
The Magistrate must be satisfied that on the balance of probabilities a restraining order is necessary to protect the applicant from violent, intimidatory or offensive behavior by the respondent. If an interim order is issued the person bound by the order has 21 days to object to it. If no objection to the order is lodged within that time the interim order automatically becomes a final order.
If a respondent does notify the Court within the prescribed period that s/he objects to the restraining order being made the Court must fix a hearing and a trial will be conducted to determine whether the restraining order is necessary and appropriate.
Evidence at trial must be entered in accordance with the normal rules of evidence. Witnesses may be called by both the applicant and the respondent and cross examined, documents can be tendered including affidavits and any other evidence that will assist the Court to determine whether a restraining order is necessary and appropriate in the circumstances.
Restraining orders are civil proceedings and the Court must be satisfied that it is more likely than not that the restraining order is necessary to protect the applicant from the respondent. If the applicant can show that s/he is reasonably fearful, offended or intimidated by the respondent then an order can be issued.
The respondent may choose to consent to a restraining order being made. It may simply be easier to agree to abide by the terms of a restraining order than go to the trouble and expense of defending the application. Consenting to a restraining order being made does not mean the respondent admits the allegations in the application or that the restraining order is necessary. It just means the respondent is happy to be restrained – for example from going near the protected person – and does not care to argue the need for the restraining order.
Where a respondent decides to consent to an order it should be possible to negotiate the terms of that consent with the applicant through the magistrate. For example the respondent may agree to being restrained from visiting the protected person but may not consent to a restraint on things s/he may like to say about the person.
Varying or extending a restraining order
Either the protected person or the person bound by an order can apply to cancel a restraining order at any time after it is issued. A protected person can apply to extend the duration of an order. The order must be current at the time the Court hears the application to extend it, otherwise a new application for a restraining order will be required.
Sometimes the applicant and respondent are able to negotiate undertakings as an alternative to a restraining order. Undertakings are a promise between the parties to not do or to do certain things. They are not legally binding and there is no consequence for failing to honour the promises they contain.
If an applicant accepts undertakings given by the respondent s/he may withdraw the application for a restraining order. If at a later date the undertakings are breached or not abided by an application for a restraining order can be made over again.
It should be easier to prove the need for a restraining order where there were undertakings in place and those undertakings can be clearly shown to have been breached.
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our Family Lawyers via our office on Freecall 1800 609 945 or email us now.