Offering quality representation and legal advice across criminal and traffic charges, regulatory matters and restraining orders.
When will a family violence restraining order be granted?
A Family Violence Restraining Order will be granted to an applicant by a Court when that person can establish that they are, or have been, in a family or domestic relationship with the person from whom they are seeking to be protected (‘the respondent’).
The applicant must also show that the respondent has engaged in family violence against the applicant in the past and the respondent is likely to commit family violence again in the future or the applicant has reasonable grounds to apprehend that family violence will be committed against them.
What is classified as a “Family or Domestic Relationship”?
If two persons are in, or have been in, one of the following relationships (listed below) those persons will be classified as being in a family or domestic relationship by the Court:
- Married to one another;
- In de-facto relationship (living with one another);
- Related to each other;
- Personal intimate relationship;
- Guardian and child relationship; or
- Personal relationship of a domestic nature in which the lives of the two people are interrelated and where the actions of one person affects the other.
What is Family Violence?
Family violence is an umbrella term which is not limited to physical violence but covers a wide array of behaviours. These behaviours are set out in section 5A of the Restraining Orders Act and include, but are not limited to, the following:
- Assault (physical or sexual);
- Stalking physically or through the use of the internet;
- Killing or injuring an animal that is owned by the other person;
- Damaging property;
- Repeated derogatory remarks;
- Controlling or coercive behaviours;
- Emotional abuse;
- Financial abuse;
- Distributing intimate images; and
- Subjecting, or exposing a child to any of the above matters.
Can children be listed on a family violence restraining order?
If any children of the relationship have been exposed to family violence, or are likely to be exposed to family violence, the applicant can seek that the children be listed on the Family Violence Restraining Order. The children do not need to be the biological children of the applicant and respondent.
If the Order is granted by the Court, the Order will then extend to protect these children as if they were also the persons protected.
How do you apply for a family violence restraining order?
An applicant who seeks the protection of a Family Violence Restraining Order must complete and file an application in the Magistrates Court. This is usually the Magistrates Court which is located closest to the applicant’s home residence.
There are no fees to be paid by the applicant at the time the application is submitted to the Court, as these processes are designed to protect applicants from incidences of family violence.
What is an interim hearing?
An Interim Hearing is the next step and will take place on the same date the application is submitted by the applicant.
The Interim Hearing will take place in the Court where the application was filed and in the absence of the respondent. The respondent will not be notified of the Hearing and will not be aware that this Interim Hearing is taking place.
At the Interim Hearing a Magistrate will consider the information contained in the application and will ask the applicant questions relating to the information contained in that application. Upon consideration of all the information, if the Court is satisfied that the applicant requires the protection of an Order the Court will then grant the applicant an Interim Family Violence Restraining Order.
What will happen if an interim order is granted to the applicant?
Once an Interim Order is granted to the applicant by the Court the next step will be for the Western Australian (WA) Police to serve a copy of that Order on the respondent.
Once the Order is provided to the respondent, the Order will come into force and it is at this time that it can be enforced by both the Police and the Courts.
What happens after the order is served?
Once the respondent has been given a copy of the Order, the respondent will have a period of twenty-one (21) days to object to that order. If the respondent does not object to the Order, the Order will become a Final Order and will be in place for a period of two years.
If the respondent objects to the Order, the matter will be listed for a Final Order Family Violence Direction Hearing or a Final Order Hearing. The type of Hearing the matter is listed for will depend upon the Court in which the matter is listed.
Where are our lawyers located?
We have offices in Perth, Joondalup, Mandurah, Bunbury, and Albany, but have experience representing and advising clients throughout regional and remote areas in WA. Our criminal defence lawyers can travel to any court in WA, and are willing to assist you no matter where in WA you may be.
*This is general information only, and does not constitute specific legal advice. Please consult one of our experienced Legal Team for specific advice relevant to your situation.
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